
Book._ 



C£FOUCHT OEPOSIC 



c,-;- 



FREEDOM of SPEECH 



/ 



BY 

ZECHARIAH CHAFEE, Jr. 

PBOFESSOB OF LAW IN HABVABD UNIVEBSITY 



GIVE YOUR MIND SEA ROOM ' 



m 



NEW YORK 

HARCOURT, BRACE AND HOWE 

1920 






COPYRIGHT, 1920, BY 
HARCOURT, BRACE AND HOWE, INC. 



DEC -2 1920 V) 

A/ 



THE QUINN a BODEN COMPANY 
RAHWAY, N J. 



Q)C!.A604403 



TO 

LEARNED HAND 

UNITED STATES DISTRICT JUDGE 

rOE THE SOUTHERN DISTRICT OF NEW YORK 

WHO DURING THE TURMOIL OF WAR 

COURAGEOUSLY MAINTAINED 

THE TRADITION OF ENGLISH-SPEAKING FREEDOM 

AND GAVE IT NEW CLEARNESS AND STRENGTH 

FOR THE WISER YEARS TO COME 



CONTENTS 

CHAPTER PAOB 

I. Freedom of Speech in War Time .... 1 



JI. Opposition to the War with Germany 



I. The Espionage Acts of 1917 and I9I8 42 



II. Masses Publishing Co. v. Patten 

III. The District Court Cases . 

IV. The Hitman Machinery of the Espio 

nage Acts 

V. The Supreme Court Decisions 

VI. Censorship and Exile 

VII. State Espionage Acts 

VIII. Reflections During a Technical State 
of War 



III. A Contemporary State Trial — The United 
States v. Jacob Abrams et al. . 

I. The District Court 

II. The Supreme Court 

IV. Legislation against Sedition and Anarchy 

I. The Normal Law Against Violence 
and Revolution .... 



II. The Normal Criminal Law of Words 

III. The Difference Between the Normal 

Law and the New Legislation . 

IV. Radical Meetings and the Red Flag 

V. Criminal Anarchy and Criminal Syn 
dicalism ..... 

VI. The Federal SediUon Bills . 



40 



46 

87 
106 
110 

113 



120 
125 
148 

161 

165 
169 

173 
180 

187 
194 



vi CONTENTS 

CHAPTBai PAGE 

VII. The Constitutionality of a Federal Sedi- 
tion Law 199 

VIII. The Wisdom and Expediency of a 

Federal Sedition Law . . . 207 

V. The Deportations 229 

I. The Statute as to Deportable Radicals 230 

II. The Administrative Machinery for De- 
porting Radicals .... 232 

IIL The Raids of January, 192O . . 241 

IV. The Arrest of American Citizens for 

Deportation 252 

V. A Review of the Actual Cases of Radi- 
cals Held for Deportation . . 256 

(1) Communists — Guilt by Associa- 

tion and Government Spies 256 

(2) Industrial Workers of the 

World 272 

(3) Anarchists .... 275 

VI. The Deportations and the Bill of Rights 280 

VII. Suggested Changes in Our Deportation 

Policy 291 

VI. John Wilkes, Victor Berger, and the Five 

Members 294 

I. John Wilkes 295 

II. The Raids of 1763 and the Raids of 

1919 296 

III. The Exclusion of Wilkes from the 

House of Commons . . . .311 

IV. The Exclusion of Victor L. Berger from 

the House of Representatives . . 315 

V. The Five Socialist Members of the New 

York Assembly 332 

VII. Freedom and Initiative in the Schools . . 365 



CONTENTS vu 

APPENDICES 

APPENDIX PAGE 

I. Bibliography on Freedom of Speech .... 377 
A. General and Historical; B. The War; 
C. Radical Activities in the United States 
and Peace-time Restrictions upon Freedom of 
Speech; D. Power of a Legislature to Exclude 
or Expel for Opinions; E. Schools. 

II. Index of Reported Cases under the Espionage Acts 

of 1917 and I9I8 387 

III. Text and Construction of the Espionage Act of I9I8 395 

IV. Normal Law of Four Jurisdictions Against Actual 

or Threatened Violence 398 

V. State War and Peace Statutes Affecting Freedom 

of Speech 399 

Index of Cases , 407 

General Index 411 



FREEDOM OF SPEECH 

CHAPTER I 

FREEDOM OF SPEECH IN WAR TIME 

And though all the winds of doctrine were let loose to play 
upon the earth, so Truth be in the field, we do injuriously by 
licensing and prohibiting to misdoubt her strength. Let her and 
Falsehood grapple ; who ever knew Truth put to the worse, in a 
free and open encounter? — Milton, Areopagitica. 

Never in the history of our country, since the Alien and 
Sedition Laws of 1798, has the meaning of free speech been 
the subject of such sharp controversy as to-day. Over 
nineteen hundred prosecutions and other judicial proceedings 
during the war, involving speeches, newspaper articles, 
pamphlets, and books, have been followed since the armi- 
stice by a widespread legislative consideration of bills pun- 
ishing the advocacy of extreme radicalism. It is becom- 
ing increasingly important to determine the true limits of 
freedom of expression, so that speakers and writers may 
know how much they can properly say, and governments 
may be sure how much they can lawfully and wisely sup- 
press. The United States Supreme Court has recently 
handed down several decisions upon the Espionage Act, 
which put us in a much better position than formerly to 
discuss the war-time aspects of the general problem of lib- 
erty of speech. Therefore, instead of beginning with an 
abstract treatment of that problem, I shall take the con- 
crete situation of opposition to war, and from it endeavor 
to work out the fundamental principles of the whole sub- 
ject. These can afterwards be tested by their application 
to radical agitation in peace. 

1 



2 FREEDOM OF SPEECH 

It is already plain, I hope, that this book is an inquiry into 
the proper limitations upon freedom of speech, and is in no 
way an argument that any one should be allov/ed to say what- 
ever he wants anywhere and at any time. We can all agree 
from the very start that there must be some point where 
the government may step in, and my main purpose is to make 
clear from many different angles just where I believe that 
point to lie. We ought also to agree that a man may believe 
that certain persons have a right to speak or other constitu- 
tional rights, without at all identifying himself with the posi- 
tion and views of such persons. In a country where John 
Adams defended the British soldiers involved in the Boston 
Massacre and Alexander Hamilton represented British Loyal- 
ists and General Grant insisted upon amnesty for Robert E. 
Lee, it is surprising how in the last three years it has been im- 
possible for any one to uphold the rights of a minority with- 
out subjecting himself to the accusation that he shared their 
opinions. If he urged milder treatment of conscientious ob- 
jectors, he was a pacifist. If he held that the treaty with 
Germany should not violate the terms of the armistice, he 
was a pro-German. This popular argument reached its climax 
when an opponent of the disqualified Socialist assemblymen 
informed the world that he had always suspected Governor 
Hughes of being disloyal. 

I am not an atheist, but I would not roast one at the stake 
as in the sixteenth century, or even exclude him from the 
witness-stand as in the nineteenth. Neither am I a pacifist or 
an anarchist or a Socialist or a Bolshevik. I have no sym- 
pathy myself with the views of most of the men who have 
been imprisoned since the war began for speaking out. The 
only one, I suppose, of all that number with whom I could sit 
down for half an hour's conversation without losing my tem- 
per is Mr. Bertrand Russell. My only interest is to find 
whether or not the treatment which they have received ac- 
cords with freedom of speech. That principle may be invoked 
just as eagerly in future years by conservatives. Whatever 
political or economic opinion falls within the scope of the 



FREEDOM OF SPEECH IN WAR TIME 3 

First Amendment ought to be safeguarded from governmental 
interference by every man who has sworn to uphold the 
Constitution of the tFnited States, no matter how much he 
disagrees with those who are entitled to its protection or 
how lofty the patriotism of those who would whittle away 
the Bill of Rights into insignificance. 

A friend of Lovejoy, the Abolitionist printer killed in the 
Alton riots, said at the time that we are more especially 
called upon to maintain the principles of free discussion 
in case of unpopular sentiments or persons, as in no other 
case will any effort to maintain them be needed.^ 

The free speech clauses of the American constitutions 
are not merely expressions of political faith without bind- 
ing legal force. Their history shows that they limit legis- 
lative action as much as any other part of the Bills of 
Rights. The United States Constitution as originally 
drafted contained no guaranty of religious or intellectual 
liberty, except that it forbade any religious test oath and 
gave immunity to members of Congress for anything said 
in debates. Pinckney, of South Carolina, had sought to in- 
sert a free speech clause, grouping liberty of the press with 
trial by jury and habeas corpus as " essentials in free gov- 
ernments." His suggestion was rejected by a slight ma- 
jority as unnecessary, in that the power of Congress did not 
extend to the press, a natural belief before Hamilton and 
Marshall had developed the doctrine of incidental and im- 
plied powers. Hamilton himself defended the omission on 
the ground that liberty of the press was indefinable and de- 
pended only on public opinion and the general spirit of the 
people and government for its security, little thinking that 
he himself would frame a definition now embodied in the 
constitutions of half the states.^ The citizens of the states 
were not satisfied, and the absence of the guaranty of free- 

1 Edward Beecher, Alton Riots, Alton, 111., 1838 (Widener Library). 
A bibliographical note to this and other chapters will be found in 
Appendix I. 

2 The various types of free speech clauses are given in Index Digest of 
State Constitutions, N. Y. State Cons. Conv. Coram., 1915, pp. 700-702, 



4 FREEDOM OF SPEECH 

dom of speech was repeatedly condemned in the state con- 
ventions and in outside discussion. Virginia, New York, and 
Rhode Island embodied a declaration of this right in their 
ratifications of the federal Constitution. Virginia expressly 
demanded an amendment and Maryland drafted one in its 
convention, basing it on a very significant reason, to be men- 
tioned shortly. At the first session of Congress a Bill of 
Rights, including the present First Amendment, was pro- 
posed for adoption by the states, and became part of the 
Constitution November 3, 1791. Massachusetts, Virginia, 
and Pennsylvania already had similar provisions, and such 
a clause was eventually inserted in the constitutions of all 
other states. Thus the guaranty of freedom of speech was 
almost a condition of the entry of four original states into 
the Union, and is now declared by every state to be as much 
a part of its fundamental law as trial by jury or compensa- 
tion for property taken by eminent domain. Such a widely 
recognized right must mean something, and have behind it 
the obligation of the courts to refuse to enforce any legisla- 
tion which violates freedom of speech. 

We shall not, however, confine ourselves to the question 
whether a given form of federal or state action against pa- 
cifist and similar utterances is void under the constitutions. 
It is often assumed that so long as a statute is held valid 
under the Bill of Rights, that document ceases to be of any 

956-968. Twenty-three state constitutions follow Hamilton (note 65, 
infra) in making truth a defense to criminal libel if published with good 
motives. The first was New York Constitution, 1821, Art. 7, §8. See 
Reports of New York Constitutional Convention of 1821, pp. 167, 487. 
All but five states have a clause resembling another sentence of the New 
York section: "Every citizen may freely speak, write, and publish his 
sentiments, on all subjects, being responsible for the abuse of that right; 
and no law shall be passed, to restrain, or abridge the liberty of speech, 
or of the press." Massachusetts, Mississippi, New Hampshire, Vermont, 
and South Carolina retain a short clause much like the federal Constitu- 
tion. The express exception of " abuse " was first made by Pennsylvania 
in 1790 (note 36, infra) ; but since I regard such an exception as implied 
in the United States form, I have assumed in this book that there is no 
difference in legal effect. The effect of the Hamiltonian clause is dis- 
cussed by Henry Schofield, " Freedom of the Press in the United States," 
9 Proc. Am. Sociolog. Soc. 88 ff., cited hereafter as Schofield. 



FREEDOM OF SPEECH IN WAR TIME 6 

importance in the matter, and may be henceforth disre- 
garded. On the contrary, a provision like the First Amend- 
ment to the federal Constitution, 

Congress shall make no law respecting an establishment of 
religion^ or prohibiting the free exercise thereof ; or abridging the 
freedom of speech, or of the press; or the right of the people 
peaceably to assemble, and to petition the Government for a 
redress of grievances, 

is much more than an order to Congress not to cross the 
boundary which marks the extreme limits of lawful suppres- 
sion. It is also an exhortation and a guide for the action 
of Congress inside that boundary. It is a declaration of 
national policy in favor of the public discussion of all public 
questions. Such a declaration should make Congress re- 
luctant and careful in the enactment of all restrictions upon 
utterance, even though the courts will not refuse to enforce 
them as unconstitutional. It should influence the judges in 
their construction of valid speech statutes, and the prose- 
cuting attorneys who control their enforcement. The Bill 
of Rights in a European constitution is a declaration of 
policies and nothing more, for the courts cannot disregard 
the legislative will though it violates the Constitution.* Our 
Bills of Rights perform a double function. They fix a certain 
point to halt the government abruptly with a " Thus far 
and no farther " ; but long before that point is reached they 

3 A. V. Dicey, Law of the Constitution, 8 ed., 130; "This curious 
result therefore ensues. The restrictions placed on the action of the 
legislature under the French constitution are not in reality laws, since 
they are not rules which in the last resort will be enforced by the 
Courts. Their true character is that of maxims of political morality, 
which derive whatever strength they possess from being formally in- 
scribed in the constitution and from the resulting support of public 
opinion. What is true of the constitution of France applies with more 
or less force to other polities which have been formed under the influ- 
ence of French ideas." 

Probably some Americans anticipated only the same eflFect from our 
bills of rights, not realizing that an unconstitutional statute would 
be held unenforceable. Spencer said in the North Carolina Convention: 
" If a boundary were set up, when the boundary is passed, the people 
would take notice of it immediately." 4 Elliot's Debates (2 ed.) 175. 



6 FREEDOM OF SPEECH 

urge upon every official of the three branches of the state 
a constant regard for certain declared fundamental policies 
of American life.* 

Our main task, therefore, is to ascertain the nature and 
scope of the policy which finds expression in the First Amend- 
ment to the United States Constitution and the similar 
clauses of all the state constitutions, and then to determine 
the place of that policy in the conduct of war, and particu- 
larly the war with Germany. The free speech controversy 
of the last two years has chiefly gathered about the federal 
Espionage Act. This Act contains a variety of provisions 
on different subjects, such as the protection of ships in har- 
bors, spy activities, unlawful military expeditions, etc., but 
the portion which concerns us. Title I, section 3, discussed 
at length in the next chapter, as it has been interpreted by 
the courts, makes criminal several kinds of spoken or writ- 
ten opposition to this or any future war, and imposes a 
maximum penalty of $10,000 fine or twenty years' impris- 
onment, or both. Any material violating this section may, 
under Title XII of the Act, be excluded from the mails. 
This statute has been enacted and vigorously enforced 
under a constitution which provides : " Congress shall make 
no law . . . abridging the freedom of speech, or of the 
press." 

Clearly, the problem of the limits of freedom of speech in 
war time is no academic question. On the one side, thought- 
ful men and journals are asking how scores of citizens can 
be imprisoned under this constitution only for their open dis- 
approval of the war as irreligious, unwise, or unjust. On the 
other, federal and state officials point to the great activities 
of German agents in our midst and to the unprecedented 
extension of the business of war over the whole nation, so 
that in the familiar remark of Ludendorff, wars are no 

* " No doubt our doctrine of constitutional law has had a tendency 
to drive out questions of justice and right, and to fill the mind of legis- 
lators with thoughts of mere legality, of what the constitution allows." — 
J. B. Thayer, Legal Essays, 38. See his quotation from 1 Bryce, 
American Commonwealth, 1 ed., 377. 



FREEDOM OF SPEECH IN WAR TIME 7 

longer won by armies in the field, but by the morale of the 
whole people. The widespread Liberty Bond campaigns, 
and the shipyards, munition factories, government offices, 
training camps, in all parts of the country, are felt to make 
the entire United States a theater of war, in which attacks 
upon our cause are as dangerous and unjustified as if made 
among the soldiers in the rear trenches. The government 
regards it as inconceivable that the Constitution should 
cripple its efforts to maintain public safety. Abstaining 
from countercharges of disloyalty and tyranny, let us rec- 
ognize the issue as a conflict between two vital principles, 
and endeavor to find the basis of reconciliation between order 
and freedom. 

At the outset, we can reject two extreme views in the 
controversy. First, there is the view that the Bill of Rights 
is a peace-time document and consequently freedom of speech 
may be ignored in war. This view has been officially re- 
pudiated.^ At the opposite pole is the belief of many agi- 
tators that the First Amendment renders unconstitutional 
any Act of Congress without exception " abridging the free;^^ 
dom of speech, or of the press," that all speech is free, and 
only action can be restrained and punished. This view is 
equally untenable. The provisions of the Bill of Rights can 
not be applied with absolute literalness, but are subject to 
exceptions.^ For instance, the prohibition of involuntary 
servitude in the Thirteenth Amendment does not prevent 
military conscription, or the enforcement of a " work or 
fight " statute. VThe difficulty, of course, is to define the 
principle on which the implied exceptions are based, and an 
effort to that end will be made subsequently. 

s Report of the Attorney General of the United States (1918), 20: 
" This department throughout the war has proceeded upon the general 
principle that the constitutional right of free speech, free assembly, 
and petition exist in war time as in peace time, and that the right of 
discussion of governmental policy and the right of political agitation are 
most fundamental rights in a democracy." 

6 Robertson v. Baldwin, 165 U. S. 275, 281 (1897); Selective Draft 
Law Cases, 245 U. S. 366, 390 (1918); Claudius v. Davie, 175 Cal. 208 
(1917); State v. McClure, 105 Atl. 712 (Del. Gen. Sess., 1919). 



8 FREEDOM OF SPEECH 

Since it is plain that the true solution lies between these 
two extreme views, and that even in war time freedom of 
speech exists subject to a problematical limit, it is neces- 
sary to determine where the line runs between utterances 
which are protected by the Constitution from governmental 
control and those which are not. Many attempts at a legal 
definition of that line have been made, but two mutually 
inconsistent theories have been especially successful in win- 
ning judicial acceptance, and frequently appear in the Es- 
pionage Act cases. 

One theory construes the First Amendment as enacting 
Blackstone's statement that " the liberty of the press . . . 
consists in laying no previous Restraints upon publications 
and not in freedom from censure for criminal matter when 
published." ^ The line where legitimate suppression begins is 
fixed chronologically at the time of publication. The gov- 
ernment cannot interfere by a censorship or injunction before 
the words are spoken or printed, but can punish them as much 
as it pleases after publication, no matter how harmless or 
essential to the public welfare the discussion may be. This 
Blackstonian definition found favor with Lord Mansfield,* 
and is sometimes urged as a reason why civil libels should not 
be enjoined,^ so that on this theory liberty of the press means 
opportunity for blackmailers and no protection for political 
criticism. The same definition was adopted by a few Ameri- 
can judges in early contempt proceedings and prosecutions 
for libel. ^^ The Federalist judges of that time were so noto- 

7 4 Blackstone, Commentaries, 151. 

8 King V. Dean of St. Asaph, 3 T. R. 428, 431 (1784): "The liberty 
of the press consists in printing without any previous license, subject 
to the consequence of law." 

9 See Roscoe Pound, " Equitable Relief Against Defamation and In- 
juries to Personality," 29 Harv. L. Rev. 651, and recent federal cases in 32 
ibid. 938 n. Dean Pound discusses two views besides Blackstone's. The 
view mentioned as Story's is really that of St. George Tucker, whom 
Story was criticising. 2 Story, Constitution, § 1886. 

loMcKean in Respublica v. Oswald, 1 Dall. 319 (Pa., 1788), and 
Trial of William Cobbett, Wharton's State Trials, 322 (Pa., 1797), 
Yeates in Respublica v. Dennie, 4 Yeates 267 (Pa., 1805) ; Parker in 
Coram. V. Blanding, 3 Pick. 304 (Mass., 1825). See Schofield in 9 Proc. 
Am. Sociolog. Sac. 69. 



FREEDOM OF SPEECH IN WAR TIME 9 

rious for their slavish adherence to English authorities in 
disregard of our own constitutions and statutes," that their 
Blackstonian statements should have little weight in the con- 
struction of constitutional guaranties. However, one of these 
cases was in Massachusetts, whence Justice Holmes carried 
the Blackstonian definition into the United States Supreme 
Court." Fortunately he has now repudiated this interpreta- 
tion of freedom of speech,^^ but not until his dictum had had 
considerable influence, particularly in Espionage Act cases." 
Of course, if the First Amendment does not prevent prose- 
cution and punishment of utterances, the Espionage Act is 
unquestionably constitutional. 

This Blackstonian theory dies hard, but it ought to be 
knocked on the head once for all. In the first place. Black- 
stone was not interpreting a constitution, but trying to state 
the English law of his time, which had no censorship and did 
have extensive libel prosecutions. Whether or not he stated 
that law correctly, an entirely different view of the liberty of 
the press was soon afterwards enacted in Fox's Libel Act, so 
that Blackstone's view does not even correspond to the English 
law of the last hundred and twenty-five years. Furthermore, 
Blackstone is notoriously unfitted to be an authority on the 
liberties of American colonists, since he upheld the right of 
Parliament to tax them, and was pronounced by one of his 
own colleagues to have been " we all know, an anti-republican 
lawyer." ^^ 

Not only is the Blackstonian interpretation of our free 
speech clauses inconsistent with eighteenth-century history, 
soon to be considered, but it is contrary to modern decisions, 
thoroughly artificial, and wholly out of accord with a com- 
mon-sense view of the relations of state and citizen. In 

11 Beveridge's Marshall, III, 23 ff. See page 22, infra. 

12 Patterson v. Colorado, 205 U. S. 454, 462 (1907). 

13 Schenck v. U. S., 249 U. S. 47 (1919); Abraras v. U. S., 260 U. S. 
616 (1919). 

14 Masses Pub. Co. v. Patten, 246 Fed. 24 (1917); U. S. v. Coldwell, 
Bull. Dept. Just., No, 158, page 4. 

15 1 Blackstone, Commentaries, 109; Willes, J., in Dean of St. 
Asaph's Case, 4 Doug. 73, 172 (1784). 



10 FREEDOM OF SPEECH 

some respects this theory goes altogether too far In restrict- 
ing state action. The prohibition of previous restraint would 
not allow the government to prevent a newspaper from pub- 
lishing the sailing dates of transports or the number of troops 
in a sector. It would render illegal removal of an indecent 
poster from a billboard or the censorship of moving pic- 
tures before exhibition, which has been held valid under a 
free speech clause.^® And whatever else may be thought of 
the decision under the Espionage Act with the unfortunate 
title, United States v. The Spirit of '76,^^ it was clearly 
previous restraint for a federal court to direct the seizure 
of a film which depicted the Wyoming Massacre and Paul 
Revere's Ride, because it was " calculated reasonably so to 
excite or inflame the passions of our people or some of them 
as that they will be deterred from giving that full measure of 
co-operation, sympathy, assistance, and sacrifice which is due 
to Great Britain, as an ally of ours," and " to make us a 
little bit slack in our loyalty to Great Britain in this great 
catastrophe." 

On the other hand, it is hardly necessary to argue that 
the Blackstonian definition gives very inadequate protection 
to the freedom of expression. A death penalty for writing 
about socialism would be as effective suppression as a censor- 
ship. The government which holds twenty years in prison 
before a speaker and calls him free toi talk resembles the 
peasant described by Galsworthy : ^^ 

The other day in Russia an Englishman came on a street- 
meeting shortly after the first revolution had begun. An extremist 
was addressing the gathering and telling them that they were 
fools to go on fighting, that they ought to refuse and go home, 
and so forth. The crowd grew angry, and some soldiers were for 
making a rush at him; but the chairman, a big burly peasant, 
stopped them with these words : " Brothers, you know that our 

16 Mutual Film Corporation v. Industrial Commission of Ohio, 236 
U. S. 230, 241 (1915). 

17 252 Fed. 946 (D. C. S. D. Cal., 1917), Bledsoe, J. See also Gold- 
stein V. U. S., 258 Fed. 908 (C. C. A. 9th, 1919). 

18 John Galsworthy, " American and Briton," 8 Yale Rev. 27 (October, 
1918). Cf. Boswell's Johnson, ed. G. B. Hill, IV, 12. 



FREEDOM OF SPEECH IN WAR TIME 11 

country is now a country of free speech. We must listen to this 
man^ we must let him say anything he will. But, brothers, when 
he's finished, we'll bash his head in ! " 

Cooky's comment on Blackstone is unanswerable : ^" 

. . . The mere exemption from previous restraints cannot be 
all that is secured by the constitutional provisions, inasmuch as of 
words to be uttered orally there can be no previous censorship, and 
the liberty of the press might be rendered a mockery and a de- 
lusion, and the phrase itself a byword, if, while every man was 
at liberty to publish what he pleased, the public authorities might 
nevertheless punish him for harmless publications, . . . Their 
purpose [of the free-speech clauses] has evidently been to protect 
parties in the free publication of matters of public concern, to 
secure their right to a free discussion of public events and public 
measures, and to enable every citizen at any time to bring the 
government and any person in authority to the bar of public 
opinion by any just criticism upon their conduct in the exercise 
of the authority which the people have conferred upon them. . . . 
The evils to be prevented were not the censorship of the press 
merely, but any action of the government by means of which 
it might prevent such free and general discussion of public matters 
as seems absolutely essential to prepare the people for an in- 
telligent exercise of their rights as citizens. 

If we turn from principles to precedents, we find several 
decisions which declare the constitutional guarantee of free 
speech to' be violated by statutes and other governmental 
action which imposed no previous restraint, but penalized 
publications after they were made.^'* And most of the deci- 

19 Cooley, Constitutional Limitations, 7 ed., 603, 604. 

20Louthan v. Commonwealth, 79 Va. 196 (1884) — statute punishing 
school superintendent for political speeches; Atchison, etc. Ry. v. Brown, 
80 Kans. 312 (1909) — service-letter statute, making employer liable to 
civil action if he failed to furnish a discharged employee a written 
statement for the true reason for discharge. St. Louis, etc. Ry. Co. v. 
Griffin, 106 Texas 477 (1914), same; Wallace v. Georgia Ry. Co., 94 Ga. 
732 (1894), same; Ex parte Harrison, 212 Mo. 88 (1908),— statute 
punishing voters' leagues for commenting on candidates for office with- 
out disclosing the names of all persons furnishing the information; 
State ex rel. Metcalf v. District Court, 52 Mont. 46 (1916)— contempt 
proceedings for criticism of judge for past decision; State ex rel. 
Ragan v. Junkin, 85 Neb. 1 (1909), — statute invalidating nomination of 
candidates by conventions or any other method except primaries; State 
V. Pierce, 163 Wis. 615 (1916) — corrupt practices act punishing political 



12 FREEDOM OF SPEECH 

sions in which a particular statute punishing for talking or 
writing is sustained do not rest upon the Blackstonian in- 
terpretation of liberty of speech,^^ but upon another theory, 
now to be considered. Therefore, it is possible that the se- 
vere punishments imposed by Title I, section 3, of the Es- 
pionage Act, violate the First Amendment, although they do 
not interfere with utterances before publication.^^ 

A second interpretation of the freedom of speech clauses 
limits them to the protection of the use of utterance and not 
to its " abuse." It draws the line between " liberty " and 
" license." Chief Justice White ^^ rejects : 

the contention that the freedom of the press is the freedom to do 
wrong with impunity and implies the right to frustrate and defeat 
the discharge of those governmental duties upon the performance 
of which the freedom of all, including that of the press, depends. 
. . . However complete is the right of the press to state public 
things and discuss them, that right, as every other right, enjoyed 
in human society, is subject to the restraints which separate right 
from wrong-doing. 

A statement of the same view in another peace case is 
made by Judge Hamersley of Connecticut : ^* 

Every citizen has an equal right to use his mental endowments, 
as well as his property, in any harmless occupation or manner; 
but he has no right to use them so as to injure his fellow-citizens 
or to endanger the vital interests of society. Immunity in the 
mischievous use is as inconsistent with civil liberty as prohibition 

disbursements outside one's own county except through a campaign 
committee; State v. Printing Co., 177 Pac. 751 (N. M., 1918)— con- 
tempt. Some of these decisions are open to dispute on the desira- 
bility of the statutes, and some are opposed by other cases for that 
reason, but in their repudiation of the Blackstonian test they furnish 
unquestioned authority. 

21 Examples in such cases of express repudiation of the Blackstonian 
doctrine are found in Schenck v. United States, 249 U. S. 47 (1919); 
State V. McKee, 73 Conn. 18 (1900); State v. Pioneer Press Co., 100 
Minn. 173 (1907); Cowan v. Fairbrother, 118 N. C. 406, 418 (1896). 

22 Title XII of the Espionage Act does impose previous restraint on 
publications which violate the Act by authorizing the Postmaster 
General to exclude them from the mails. See page 108, infra. 

23 Toledo Newspaper Co. v. United States, 247 U. S. 402, 419 (1918). 
2* State V. McKee, 73 Conn. 18, 28 (1900). 



FREEDOM OF SPEECH IN WAR TIME 13 

of the harmless use. . . , The liberty protected is not the right / 
to perpetrate acts of licentiousness, or any act inconsistent with I 
the peace or safety of the State. Freedom of speech and press \ 
does not include the abuse of the power of tongue or pen, any/ 
more than freedom of other action includes an injurious use of ( 
one's occupation, business, or property. 

The decisions in the war are full of similar language,^^ 
of which a few specimens will suffice: 

In this country it is one of our foundation stones of liberty that 
we may freely discuss anything we please, provided that that 
discussion is in conformity with law, or at least not in violation 
of it. 

No American worthy of the name believes in anything else 
than free speech ; but free speech means, not license, not counsel- 
ing disobedience of the law. Free speech means that frank, free, 
full, and orderly expression which every man or woman in the 
land, citizen or alien, may engage in, in lawful and orderly fashion. 

No one is permitted under the constitutional guaranties to 
commit a wrong or violate the law. 

Just the same sort of distinction was made by Lord Ken- 
yon during the French revolution : 

The liberty of the press is dear to England. The licentiousness 
of the press is odious to England. The liberty of it can never 
be so well protected as by beating down the licentiousness. 

This exasperated Sir James Fitzjames Stephen into the 
comment, " Hobbes is nearly the only writer who seems to me 
capable of using the word * liberty ' without talking non- 
sense." " 

A slightly more satisfactory view is adopted by Cooley,*' 
that the clauses guard against repressive measures by the 

25 Mayer, J., in United States v. Phillips, Bull. Dept. Just., No. 
14 (S. D. N. Y., 1917), 5; and United States v. Goldman, Bull. Dept. 
Just., No. 41 (S. D. N. Y., 1917), 2; Van Valkenburgh, J., in United 
States V. Stokes, Bull. Dept. Just., No. 106 (W. D. Mo., 1918), 12. 
See also United States v. Pierce, Bull. Dept. Just., No. 62 (S. D. N. Y., 
1917), 22, Ray, J.; United States v. Nearing, Bull. Dept. Just., No. 
192 (S. D. N. Y., 1917), 4, Mayer, J.; United States v. Wallace, Bull. 
Dept. Just. 4 (la., 1917), 4, Wade, J. 

26 2 Hist. Grim. Law 348 n. 

27Cooley, Constitutional Limitations, 7 ed., 606; quoted by Hough, 
J., in Fraina v. United States, 266 Fed. 28, 35 (C. C. A. 2d, 1918). 



14 FREEDOM OF SPEECH 

several departments of government, but not against utter- 
ances which are a pubHc offense, or which injure the reputa- 
tion of individuals. 

We understand liberty of speech and of the press to imply not 
only liberty to publish, but coinplete immunity from legal censure 
and punishment for the publication, so long as it is not harmful 
in its character, when tested by such standards as the law affords. 

To a judge obliged to decide whether honest and able op- 
position to the continuation of a war is punishable, these 
generalizations furnish as much help as a woman forced, like 
Isabella in Measure for Measure, to choose between her 
brother's death and loss of honor, might obtain from the 
pious maxim, " Do right." What is abuse? What is license? 
What standards does the law afford? To argue that the 
federal Constitution does not prevent punishment for crim- 
inal utterances begs the whole question, for utterances within 
its protection are not crimes. If it only safeguarded lawful 
speech, Congress could escape its operation at any time by 
making any class of speech unlawful. Suppose, for example, 
that Congress declared any criticism of the particular admin- 
istration in office to bo a felony, punishable by ten years' im- 
prisonment. Clearly, the Constitution must limit the power 
of Congress to create crimes. But how far does that limita- 
tion go? Cooley suggests that the constitutional guaranties 
must be interpreted in the light of the contemporary com- 
mon law of blasphemy, obscenity, and defamation, but flatly 
denies that they enact the common law of sedition and libels 
against the government.^® Conditions in 1791 must be con- 
sidered, but they do not arbitrarily fix the division between 
lawful and unlawful speech for all time. 

Clearly, we must look further and find a rational test of 
what is use and what is abuse. Saying that the line lies be- 
tween them gets us nowhere. And " license " Is too often 
*' liberty " to the speaker, and what happens to be anathema 
to the judge. 

28 Ibid. 604, 612 ff. 



FREEDOM OF SPEECH IN WAR TIME 15 

We can, of course, be sure that certain forms of utter- 
ance, which have always been crimes or torts at common 
law, are not within the scope of the free speech clauses. The 
courts in construing such clauses have, for the most part, 
done little more than place obvious cases on this or that side 
of the line. They tell us, for instance, that libel and slander 
are actionable, or even punishable, that indecent books are 
criminal, that it is contempt to interfere with pending ju- 
dicial proceedings, and that a permit can be required for 
street meetings ; and on the other hand, that some criticism 
of the government must be allowed, that a temperate exami- 
nation of a judge's opinion is not contempt, and that honest 
discussion of the merits of a painting causes no liability for 
damages. But when we ask where the line actually runs and 
how they know on which side of it a given utterance belongs, 
we find little answer in their opinions. 

We do have two very able judicial statements which take 
us far toward the ultimate solution of the problem of the 
limits of free speech, but they unfortunately lack the weight 
of binding adjudications, for one is a decision by Judge 
Learned Hand which was subsequently reversed on appeal 
and the other a dissenting opinion by Justice Holmes. 
Therefore, it is regrettable that when Justice Holmes spoke 
for all members of the United States Supreme Court in the 
earlier Espionage Act decisions, he did not feel at liberty to 
go beyond the particular facts before him into a fuller expo- 
sition of fundamental principles, and make articulate for us 
that major premise, under which judges ought to classify 
words as inside or outside the scope of the First Amendment. 
He, we then hoped, would concentrate his great abilities on 
fixing the line. Instead, like other judges, he told us that 
certain plainly unlawful utterances are, to be sure, unlawful. 

The First Amendment . . . obviously was not intended to give 
immunity for every possible use of language. . . . We venture to 
believe that neither Hamilton nor Madison, nor any other com- 
petent person then or later, ever supposed that to make criminal 



16 FREEDOM OF SPEECH 

the counselling of a murder . . . would be an unconstitutional 
interference with free speech.^® 

The most stringent protection of free speech would not protect 
a man in falsely shouting fire in a theater and causing a panic.^" 

How about the man who gets up in a theater between the 
acts and informs the audience honestly, but perhaps mistak- 
enly, that the fire exits are too few or locked? He is a much 
closer parallel to Frohwerk or Debs. How about James 
Russell Lowell when he counseled, not murder, but the ces- 
sation of murder, his name for war? The question whether 
such perplexing cases are within the First Amendment or 
not cannot be solved by the multiplication of obvious exam- 
ples, but only by the development of a rational principle to 
mark the limits of constitutional protection. 

" The gradual process of judicial inclusion and exclu- 
sion," *^ which has served so well to define other clauses in 
the federal Constitution by blocking out concrete situations 
on each side of the line until the line itself becomes increas- 
ingly plain, has as yet been of very little use for the First 
Amendment. The cases are too few, too varied in their char- 
acter, and often too easily solved, to develop any definite 
boundary between lawful and unlawful speech. Even if some 
boundary between the precedents could be attained, we could 
have little confidence in it unless we knew better than now 
the fundamental principle on which the classification was 
based. Indeed, many of the decisions in which statutes have 
been held to violate free speech seem to ignore so seriously 
the economic and political facts of our time, that they are 
precedents of very dubious value for the inclusion and exclu- 
sion process.^^ Nearly every free speech decision, outside 
such hotly litigated portions as privilege and fair comment 
in defamation, appears to have been decided largely by in- 
tuition. 

29 Frohwerk v. United States, 249 U. S. 204 (1919). 
aoSchenck v. United States, 249 U. S. 47 (1919). 
31 Miller, J., in Davidson v. New Orleans, 96 U. S. 97, 104 (1877). 
82 See note 20, svjpra. 



FREEDOM OF SPEECH IN WAR TIME 17 

In the next chapter I shall return to the opinions of Jus- 
tice Holmes and Judge Hand. For the moment, however, 
it may be worth while to forsake the purely judicial discus- 
sion of free speech, and obtain light upon its meaning from 
the history of the constitutional clauses and from the pur- 
pose free speech serves in social and political life. 

The framers of the First Amendment make it plain that 
they regarded freedom of speech as very important — " abso- 
lutely necessary " is Luther Martin's phrase. But they say 
very little about its exact meaning. That should not sur- 
prise us if we recall our own vagueness about freedom of 
the seas. Men rarely define their inspirations until they 
are forced into doing so by sharp antagonism. Therefore, 
it is not until the Sedition Law of 1798 made the limits of 
liberty of the press a concrete and burning issue that we get 
much helpful expression of opinion on our problem.^* Be- 
fore that time, however, we have a few important pieces of 
evidence to show that the words were used in the Constitution 
in a wide and liberal sense. 

On October 26, 1774, the Continental Congress issued an 
address to the inhabitants of Quebec, declaring that the 
English colonists had five invaluable rights, representative 
government, trial by jury, liberty of the person, easy tenure 
of land, and freedom of the press : ^* 

The last right we shall mention regards the freedom of the 
press. The importance of this consists, besides the advancement 
of truth, science, morality and arts in general, in its diffusion of 
liberal sentiment on the administration of government, its ready 
communication of thoughts between subjects, and its consequential 
promotion of union among them, whereby oppressive officials are 
shamed or intimidated into more honorable and just modes of 
conducting affairs. 

In 1785 Virginia, which was the first state to insert a 
clause protecting the liberty of the press in its constitution 
(1776), enacted a statute drawn by Jefferson for Establish- 
as See Appendix I for references on the Law of 179^. 
34 Journal of the Continental Congress, Vol. I (ed. 1800), p. 67. 



18 FREEDOM OF SPEECH 

ing Religious Freedom.^^ This opened with a very broad 
principle of toleration : " Whereas, Almighty God hath cre- 
ated the mind free ; that all attempts to influence it by tem- 
poral punishments or burthens, or by civil incapacitations, 

tend only to beget habits of hypocrisy and meanness " 

While this relates specifically to religion, it shows the 
trend of men's thoughts, and the meaning which " liberty " 
had to Jefferson long before the bitter controversy of 1798. 

One other framer of our government has stated his views 
on this matter in less solemn language, Benjamin Franklin.^* 
In discussing the brief " freedom of speech " clause in the 
Pennsylvania Constitution of 1776, he said in 1789, that if 
by the liberty of the press were to be understood merely the 
liberty of discussing the propriety of public measures and 
political opinions, let us have as much of it as you please. 
On the other hand, if it means liberty to calumniate another 
there ought to be some limit ; but he has been at a loss to 
imagine any that may not be construed an infringement of 
the sacred liberty of the 'press. At length, however, he 
thinks he has found one that instead of diminishing general 
liberty shall augment it ; he means the liberty of the cud- 
gel. If, however, it should be thought that this proposal 
of his may disturb the public peace, he would humbly 
recommend to our legislators to take up the consideration 
of both liberties, that of the press, and that of the cudgel, 
and by an explicit law mark their extent and limits. 
Thus Franklin construed this clause so widely as even to 
grant immunity from private libel actions. Next year the 
Pennsylvania Constitution was amended to impose respon- 
sibility for the abuse of the liberty, but no such exception 
was thought necessary in the United States Constitution, 
probably because private libels were not within the purview 
of the federal law. 

The most significant evidence of the meaning of the First 

35 See note 66, infra. 

z^ Works, ed. A. H. Smyth, X, 30 flF. See Pa. Cons. (1776), c. I, 
sect. 12; Pa. Cons. (1790), Art. IX, sect. 7. 



FREEDOM OF SPEECH IN WAR TIME 19 

Amendment is the reason given by the Maryland convention 
of 1788 to the people for including such a clause in the pro- 
posed federal Bill of Rights : ^^ " In prosecutions in the 
federal courts, for libels, the constitutional preservation of 
this great and fundamental right may prove invaluable." 
This is, of course, absolutely inconsistent with any Black- 
stonian limitation of the right to absence of a censorship. 

If we apply Coke's test of statutory construction, and 
consider what mischief in the existing law the framers of 
the First Amendment wished to remedy by a new safeguard, 
we can be sure that it was not the censorship. This had 
expired in England in 1695, and in the colonies by 1725.^* 
For years the government here and in England had substi- 
tuted for the censorship rigorous and repeated prosecutions 
for criminal libel or seditious libel, as it was often called, 
which were directed against political discussion, and for 
years these prosecutions were opposed by liberal opinion 
and popular agitation. Primarily the controversy raged 
around two legal contentions of the great advocates for 
the defense, such as Erskine and Andrew Hamilton. They 
argued, first, that the jurj and not the judge ought to de- 
cide the libellous nature of the writing, and secondly, that 
the truth of the charge ought to prevent conviction. The 
real issue, however, lay much deeper. Two different views 
of the relation of rulers and people were in conflict. Ac- 
cording to one view, the rulers were the superiors of the 
people, and therefore must not be subjected to any censure 
that would tend to diminish their authority. The people 
could not make adverse criticism in newspapers or pamph- 
lets, but only through their lawful representatives in the 
legislature, who might be petitioned in an orderly manner. 
According to the other view, the rulers are agents and ser- 

37 2 Elliot's Deb. (2 ed.) 511; see the same argument in news- 
paper letters given in Pennsylvania and the Federal Constitution, ed. 
J. B. McMaster and F. D. Stone, 151, 181. The second letter sug- 
gests the possibility of a prohibitive stamp tax as in Massachusetts 
to crush the press. 

38 Macaulay, History of England, Chap. XXI ; C. A. Duniway, 
Freedom of Speech in Massachusetts, 89 note. 



20 FREEDOM OF SPEECH 

vants of the people, who may therefore find fault with their 
servants and discuss questions of their punishment or dis- 
missal, and of governmental policy. 

Under the first view, which was officially accepted until 
the close of the eighteenth century, developed the law of 
seditious libel. This is defined as " the intentional pub- 
lication, without lawful excuse or justification, of written 
blame of any public man, or of the law, or of any institu- 
tion established by law." There was no need to prove any 
intention on the part of the defendant to produce disaffec- 
tion or excite an insurrection. It was enough if he intended 
to publish the blame, because it was unlawful in him merely 
to find fault with his masters and betters. Such, in the 
opinion of the best authorities, was the common law of sedi- 
tion."' 

It is obvious that under this law liberty of the press was 
nothing more than absence of the censorship, as Blackstone 
said. All through the eighteenth century, however, there 
existed beside this definite legal meaning of liberty of the 
press, a definite popular meaning: the right of unrestricted 
discussion of public affairs. There can be no doubt that 
this was in a general way what freedom of speech meant to 
the framers of the Constitution. Thus Madison in 1799 
bases his explanation of the First Amendment on " the es- 
sential difference between the British Government and the 
American constitutions." In England, he says. Parliament 
is omnipotent and all the ramparts for protecting the rights 
of the people are reared only against the royal prerogative. 
Therefore, exemption from the censorship of the king's ap- 
pointees is the only freedom secured to the press. In the 
United States, however, the people and not the government 
possess the absolute sovereignty, and the legislature as well 
as the executive is under limitations of power. The effective 

39 Madison, Report on the Virginia Resolutions, 1799, 4 Ell. Deb. 
(2 ed.) 596 ff.; 2 Stephen, History of the Criminal Law, 299, 353, 
and Chap, XXIV., passim; Schofield, in 9 Proc. Am. Social. 8oc. 70 
ff., gives an excellent summary with especial reference to American 
conditions. 



FREEDOM OF SPEECH IN WAR TIME 21 

security of the press requires that it should be exempt not 
only from previous restraint by the executive as in England, 
but from legislative restraint also through the subsequent 
penalty of laws. After this repudiation of the Blackstonian 
doctrine, Madison goes on to reject the theory that the 
legislature is free to punish anything which was criminal 
at English common law. Here again, he says, the differ- 
ent natures of the two governments must have its effect 
and contemplate a different degree of liberty in the use of the 
press. A government which is " elective, limited and respon- 
sible " in all its branches may well be supposed to require 
" a greater freedom of animadversion " than might be toler- 
ated by one that is composed of an irresponsible hereditary 
king and upper house, and an omnipotent legislature. This 
inference is favored, he continues, by the actual English 
practice. " Notwithstanding the general doctrine of the 
common law, on the subject of the press, and the occasional 
punishment of those who use it with a freedom offensive to 
the Government, it is well known that with respect to the 
responsible measures of the Government, where the reasons 
operating here become applicable there, the freedom exer- 
cised by the press and protected by public opinion far ex- 
ceeds the limits prescribed by the ordinary rules of law." *° 

This contemporary testimony corroborates the conclusion 
of Professor Schofield: 

One of the objects of the Revolution was to get rid of the 
English common law on liberty of speech and of the press. . . . 
Liberty of the press as declared in the First Amendment, and 
the English common-Jaw crime of sedition, cannot co-exist.*^ 

The few early judicial decisions *^ to the contrary ought 
not to weigh against the statements of Franklin, Jefferson, 

40 Madison's Report on the Virginia Resolutions, 4 Ell. Deb. (2 
ed.) 596-598. The same distinction was made by Erastus Root, Report 
of the New York Constitutional Convention of 1821, p. 489. See also 
Speeches of Charles Pinckney, 1800, p. 116 flf. 

« Schofield, 76, 87. 

42 Cases in note 10; Charge to the Grand Jury of Judge Addison 
(who was born and educated in the United Kingdom), Addison Ch. (Pa.) 



22 FREEDOM OF SPEECH 

and Madison, and the general temper of the time. These 
judges were surely wrong in holding as they did that sedi- 
tion was a common-law crime in the federal courts, and in 
other respects they drew their inspiration from British prece- 
dents and the British bench instead of being in close con- 
tact with the new ideas of this country. " Indeed," as Sen- 
ator Beveridge says, " some of them were more British than 
they were American." " Let a stranger go into our courts," 
wrote one observer, " and he would almost believe himself 
in the Court of the King's Bench." *^ Great as was the serv- 
ice of these judges in establishing the common law as to pri- 
vate rights, their testimony as to its place in public affairs 
is of much less value than the other contemporary evidence 
of the men who sat in the conventions and argued over the 
adoption of the Constitution. The judges forgot the truth 
emphasized by Maitland : " The law of a nation can only be 
studied in relation to the whole national life." I must there- 
fore strongly dissent, with Justice Holmes,^* from the posi- 
tion sometimes taken in arguments on the Espionage Act, 
that the founders of our government left the common law as 
to seditious libel in force and merely intended by the First 
Amendment " to limit the new government's statutory powers 
to penalize utterances as seditious, to those which were sedi- 
tious under the then accepted common-law rule." *^ The 
founders had seen seventy English prosecutions for libel since 
1760, and fifty convictions under that common-law rule, which 
made conviction easy.^® That rule had been detested in this 
country ever since it was repudiated by jury and populace in 

270. Marshall's Minority 'Report in opposition to Madison's is chiefly 
devoted to establishing an implied power of the government to pro- 
tect itself against libels. His discussion of the First Amendment, while 
undoubtedly opposed to my view, is little more than a repetition of 
Blackstone. The Address of the Minority in the Virginia Legislature, etc. 
(Library of Congress, Class E 327, Book A 22; extracts in U. S. reply 
brief in Debs v. U. S.) 

43 Beveridge's MnrshaU, HI, 23-29. 

44Abrams v. U. S., 250 U. S. 616 (1919). 

45 W. R. Vance, in " Freedom of Speech and the Press," 2 Minn. 
L. Bev. 289, 259. 

46 2 May, Constitutional History of England, 2 ed., 9 note. 



FREEDOM OF SPEECH IN WAR TIME 23 

the famous trial of Peter Zenger, the New York printer, 
the account of which went through fourteen editions before 
1791/'' The close relation between the Zenger trial and 
the prosecutions under George III in England and America 
is shown by the quotations on reprints of the trial and the 
dedication of the 1784 London edition to Erskine, as well 
as by reference to Zenger in the discussions preceding the 
First Amendment/* Nor was this the only colonial sedi- 
tion prosecution under the common law, and many more 
were threatened/" All the American cases before 1791 
prove that our common law of sedition was exactly like that 
of England, and it would be extraordinary if the First 
Amendment enacted the English sedition law of that time, 
which was repudiated by every American and every liberal 
Englishman,^" and altered through Fox's Libel Act by Par- 
liament itself in the very next year, 1792. We might well 
fling at the advocates of this common law view the challenge 
of Randolph of Roanoke, " whether the common law of libels 
which attaches to this Constitution be the doctrine laid 
down by Lord Mansfield, or that which has immortalized 
Mr. Fox?"°^ The First Amendment was written by men 
to whom Wilkes and Junius were household words, who in- 
tended to wipe out the common law of sedition, and make 
further prosecutions for criticism of the government, without 

*7 17 How. St, Tr. 675 (1735). The fullest account of Zenger and 
the trial is given by Livingston Rutherford, John Peter Zenger, New 
York, 1904. Rutherford's bibliography lists thirteen editions of the 
account of the trial before 1791. The Harvard Law School Library con- 
tains four of these (London, 1738; London, 1752; London, 1765; New 
York, 1770), and also an undated copy without specified place, differing 
from any listed by Rutherford. See also the life of Zenger's counsel, 
Andrew Hamilton, by William Henry Loyd, in 1 Great American 
Lawyers 1. 

48 Newspaper letter, reprinted in Fenn. and the Fed. Cons., 151. 

49 C. A. Duniway, Freedom of the Press in Massachusetts, 91, 93, 
115, 123, 130, and note. In 1767 Chief Justice Hutchinson charged 
the grand jury on Blackstonian lines, "This Liberty means no more 
than a Freedom for every Thing to pass from the Press without a 
License." Ibid., 126. 

50 2 May, Constitutional History of England, Chap. IX; 2 Stephen, 
History of the Criminal Law, Chap. XXIV. 

513 Beveridge's Marshall 86. 



24 FREEDOM OF SPEECH 

any incitement to law-breaking, forever impossible in the 
United States of America. 

It must not be forgotten that the controversy over lib- 
erty of the press was a conflict between two views of gov- 
ernment, that the law of sedition was a product of the 
view that the government was master, and that the Amer- 
ican Revolution transformed into a working reality the 
second view that the government was servant, and there- 
fore subjected to blame from its master, the people. Con- 
sequently, the words of Sir James Fitzjames Stephen about 
this second view have a vital application to American law.°^ 

To those who hold this view fully and carry it out to all its 
consequences there can be no such offense as sedition. There 
may indeed be breaches of the peace which may destroy or en- 
danger life, limb, or property, and there may be incitements to 
such offenses, but no imaginable censure of the government, 
short of a censure which has an immediate tendency to produce 
such a breach of the peace, ought to be regarded as criminal. 

The repudiation by the constitutions of the English com- 
mon law of sedition, which was also the common law of 
the American colonies, has been somewhat obscured by ju- 
dicial retention of the two technical incidents of the old law 
after the adoption of the free speech clauses. Many judges, 
rightly or wrongly, continued to pass on the criminality 
of the writing and to reject its truth as a defense,^^ until 
statutes or new constitutional provisions embodying the pop- 
ular view on these two points were enacted.^* Doubtless, a 
jury will protect a popular attack on the government better 
than a judge, and the admission of truth as a defense les- 
sens the evils of suppression. These changes help to sub- 
stitute the modern view of rulers for the old view, but they 

62 2 Stephen, History of the Criminal Law, 300. The italics are 
mine. See also Schofield, 9 Proc. Am. Social. Sac, 75. 

63 Duniway, supra, Chap. IX; Commonwealth v. Clap, 4 Mass. 163 
(1808); Commonwealth v. Blanding, 3 Pick. (Mass.) 304 (1825). 

B4 Examples are: Pa. Cons. 1790, Art. 9, § 7; N. Y. Session Laws, 
1805, c. 90; N. Y. Cons., 1821, Art. VII, § 8; Mass. Laws, 1827, c. 107. 
See Schofield, op. cit., 95-99. 



FREEDOM OF SPEECH IN WAR TIME 25 

are not essential. Sedition prosecutions went on with shame- 
ful severity in England after Fox's Libel Act ^^ had given 
the jury power to determine criminality. The American 
Sedition Act of 1798, which President Wilson declares to 
have " cut perilously near the root of freedom of speech 
and of the press," ^° entrusted criminality to the jury and 
admitted truth as a defense. On the other hand, freedom 
of speech might exist without these two technical safeguards. 
The essential question is not, who is judge of the criminality 
of an utterance, but what is the test of its criminality. The 
common law and the Sedition Act of 1798 made the test 
blame of the government and its officials, because to bring 
them into disrepute tended to overthrow the state. The v 
real issue in every free speech controversy is this — whether 
the state can punish all words which have some tendency, 
however remote, to bring about acts in violation of law, or 
only words which directly incite to' acts in violation of law. 
/if words do not become criminal until they have " an 
immediate tendency to produce a breach of the peace," there 
is no need for a law of sedition, since the ordinary standards 
of criminal solicitation and attempt apply. Under those 
standards the words must bring the speaker's unlawful in- 
tention reasonably near to success. V^uch a limited power 
to punish utterances rarely satisfies the zealous in times of 
excitement like a war. They realize that all condemnation 
of the war or of conscription may conceivably lead to active 
resistance or insubordination. Is it not better to kill the 
serpent in the egg? YAll writings that have even a remote 
tendency to hinder the war must be suppressed. 
\ Such has always been the argument of the opponents of 
/ free speech. And the most powerful weapon in their hands, 
since the abolition of the censorship, is this doctrine of in- 
direct causation, under which words can be punished for a 
supposed bad tendency long before there is any probability 
that they will break out into unlawful acts. Closely related 

E5 32 Geo. Ill, c, 60 (1792). 

66 3 Woodrow Wilson, History of the American People, 153. 



26 FREEDOM OF SPEECH 

to it is the doctrine of constructive intent, which regards 
the intent of the defendant to cause violence as immaterial 
so long as he intended to write the words, or else presumes 
the violent intent from the bad tendency of the words on 
the ground that a man is presumed to intend the conse- 
quences of his acts. When rulers are allowed to possess 
these weapons, they can by the imposition of severe sen- 
tences create an ex post facto censorship of the press. The 
transference of that censorship from the judge to the jury 
is indeed important when the attack on the government 
which is prosecuted expresses a widespread popular senti- 
ment, but the right to jury trial is of much less value in 
times of war or threatened disorder when the herd instinct 
runs strong, if the opinion of the defendant is highly ob- 
jectionable to the majority of the population, or even to 
the particular class of men from whom or by whom the jury 
are drawn. 

Under Charles II trial by jury was a blind and cruel 
system. During part of the reign of George III it was, to 
say the least, quite as severe as the severest judge without 
a jury could have been. The revolutionary tribunal during 
the Reign of Terror tried by a jury.^^ It is worth our frank 
consideration, whether in a country where the doctrine of 
indirect causation is recognized by the courts twelve small 
property-holders, who have been through an uninterrupted 
series of patriotic campaigns and are sufficiently middle- 
aged to be in no personal danger of compulsory military 
service, are fitted to decide whether there is a tendency to 
obstruct the draft in the writings of a pacifist, who also 
happens to be a socialist and in sympathy with the Rus- 
sian Revolution. This, however, is perhaps a problem for 
the psychologist rather than the lawyer. 

Another significant fact in sedition prosecutions is the 
well-known probability that juries will acquit, after the ex- 
citement is over, for words used during the excitement, 
which are as bad in their tendency as other writings prose- 

67 1 Stephen, History of the Criminal Law, 569. 



FREEDOM OF SPEECH IN WAR TIME 27 

cuted and severely punished during the critical period. This 
was very noticeable during the reign of George III. It is 
also interesting to find two juries in different parts of the 
country differing as to the criminal character of similar 
publications or even the same publication. Thus Leigh 
Hunt was acquitted for writing an article, for the printing 
of which John Drakard was convicted. The acquittal of 
Scott Nearing and the conviction by the same jury of the 
American Socialist Society for publishing his book form 
an interesting parallel.^® 

The manner in which juries in time of excitement may 
be used to suppress writings in opposition to the govern- 
ment, if bad tendency is recognized as a test of criminality, 
is illustrated by the numerous British sedition trials during 
the French Revolution. These were after the passage of 
Fox's Libel Act. For instance, in the case just mentioned, 
Drakard was convicted for printing an article on the shame- 
ful amount of flogging in the army, under a charge in which 
Baron Wood emphasized the formidable foe with whom Eng- 
land was fighting, and the general belief that Napoleon was 
using the British press to carry out his purpose of securing 
her downfall.^^ 

It is to be feared, there are in this country many who are 
endeavoring to aid and assist him in his projects, by crying down 
the establishment of the country, and breeding hatred against the 
government. Whether that is the source from whence the paper 
in question springs, I cannot say, but I advise you to consider 
whether it has not that tendency. You will consider whether it 
contains a fair discussion — whether it has not a manifest tendency 
to create disaffection in the country and prevent men enlisting 
into the army — whether it does not tend to induce the soldier to 
desert from the service of his country. And what considerations 
can be more awful than these? . . . 

The House of Parliament is the proper place for the discussion 
of subjects of this nature . . . It is said that we have a right to 

68 Judge Mayer has decided that there is not such inconsistency in the 
two verdicts as to warrant a new trial. American Socialist Society ». 
United States, 260 Fed. 885 (1919). 

59 31 How. St. Tr. 495, 536 (1811). 



28 FREEDOM OF SPEECH 

discuss the acts of our legislature. That would be a large per- 
mission indeed. Is there, gentlemen, to be a power in the people 
to counteract the acts of the parliament, and is the libeller to 
come and make the people dissatisfied with the government under 
which he lives.'' This is not to be permitted to any man, — it is 
unconstitutional and seditious. 

The same emphasis on bad tendency appears in Lord 
Ellenborough's charge at Leigh Hunt's trial, although it 
failed to secure his conviction. 

Can you conceive that the exhibition of the words " One 
Thousand Lashes," with strokes underneath to attract attention, 
could be for any other purpose than to excite disaffection ? Could 
it have any other tendency than that of preventing men from 
entering into the army .'' ®° 

The same desire to nip revolution in the bud was shown 
by the Scotch judges who secured the conviction of Muir 
and Palmer for advocating reform of the rotten boroughs 
which chose the House of Commons and the extension of 
the franchise, sentences of transportation for seven and 
fourteen years being imposed.®^ 

The right of universal suffrage, the subjects of this country 
never enjoyed; and were they to enjoy it, they would not long 
enjoy either liberty or a free constitution. You will, therefore, 
consider whether telling the people that they have a just right 
to what would unquestionably be tantamount to a total subversion 
of this constitution, is such a writing as any person is entitled to 
compose, to print, and to publish. 

American sentiment about sedition trials was decisively 
shown by an expedition to New South Wales to rescue Muir, 
a sort of reverse deportation. 

60 31 How. St. Tr. 367, 408, 413 (1811). 

612 May, Constitutional History, 38-41, on the trials of Muir and 
Palmer. Philip A. Brown, The French Revolution in English History, 
97. Fourteen years appears to have been the longest sentence for sedi- 
tion imposed in Scotland during the French wars. Four years was 
the longest in England. See note 80 in Chapter II, infra, for sentences 
under the Espionage Act. Compare with these charges that of Van 
Valkenburgh, J., in United States v. Rose Pastor Stokes, infra, and the 
remarks of Judge Clayton in the Abrams trial in Chapter III. 



FREEDOM OF SPEECH IN WAR TIME 29 

In the light of such prosecutions it is plain that the most 
vital indication that the popular definition of liberty of 
the press, unpunishable criticism of officials and laws, has 
become a reality, is the disappearance of these doctrines 
of bad tendency and presumptive intent. In Great Britain 
they lingered imtil liberalism triumphed in 1832,*'^ but in 
this country they disappeared with the adoption of the free 
speech clauses. 

The revival of those doctrines is a sure symptom of an 
attack upon the liberty of the press. 

Only once in our history prior to 1917 has an attempt 
been made to apply those doctrines. In 1798 the impend- 
ing war with France, the spread of revolutionary doctrines 
by foreigners in our midst, and the spectacle of the disas- 
trous operation of those doctrines abroad, — facts that have 
a familiar sound to-day — led to the enactment of the Alien 
and Sedition Laws.^^ The Alien Law allowed the President 
to compel the departure of aliens whom he judged dangerous 
to the peace and safety of the United States, or suspected, 
on reasonable grounds, of treasonable or secret machina- 
tions against our government. The Sedition Law punished 
false, scandalous, and malicious writings against the govern- 
ment, either House of Congress, or the President, if pub- 
lished with intent to defame any of them, or to excite against 
them the hatred of the people, or to stir up sedition or to 
excite resistance of law, or to aid any hostile designs of any 
foreign nation against the United States. The maximum 
penalty was a fine of two thousand dollars and two years' 
imprisonment. Truth was a defense, and the jury had 
power to determine criminality as under Fox's Libel Act. 
Despite the inclusion of the two legal rules for which re- 
formers had contended, and the requirement of an actual 

82 That they may not have wholly disappeared even yet is indi- 
cated by the definition of sedition in Stephen's Digest of Criminal 
Law, which should have no application to American law. See also House 
Judiciary Hearings on S. 3317 etc., eeih Cong., 2d Sess., p. 277. 

63 Act of June 25, 1798, 1 Stat, at L., 570; Act of July 14, 1798, 1 
Stat, at L., 696. See Bibliography for other references on these Acts. 



30 FREEDOM OF SPEECH 

intention to cause overt injury, the Sedition Act was bitterly 
resented as invading the liberty of the press. Its constitu- 
tionahty was assailed on that ground by Jefferson, who 
pardoned all prisoners when he became President, Congress 
eventually repaid all the fines, and popular indignation at the 
Act and the prosecutions wrecked the Federalist party. In 
those prosecutions words were once more made punishable for 
their judicially supposed bad tendency, and the judges re- 
duced the test of intent to a fiction by inferring the bad in- 
tent from this bad tendency. 

Whether or not the Sedition Act was unconstitutional, 
and on that question Jefferson seems right, it surely defeated 
the fundamental policy of the First Amendment, the open 
discussion of public affairs. Like the British trials, the 
American sedition cases showed, as Professor Schofield dem- 
onstrates,''* " the great danger . . . that men will be fined 
and imprisoned, under the guise of being punished for their 
bad motives, or bad intent and ends, simply because the pow- 
ers that be do not agree with their opinions, and spokesmen 
of minorities may be terrorized and silenced when they are 
most needed by the community and most useful to it, and 
when they stand most in need of the protection of the law 
against a hostile, arrogant majority." When the Demo- 
crats got into power, a common-law prosecution for sedi- 
tious libel was brought in New York against a Federalist 
who had attacked Jefferson. Hamilton conducted the de- 
fense in the name of the liberty of the press.*^ This testi- 
mony from Jefferson and Hamilton, the leaders of both par- 

64 Schofield, op. cit., 91, and 92 note, 

65 People V. Croswell, 3 Johns. Cas. 337 (1804). New York had 
then no constitutional guarantee of liberty of the press, but Hamilton 
urged that under that right at common law truth was a defense and. 
the jury could decide on criminality. He defined liberty of the press 
as " The right to publish, with impunity, truth, with good motives, 
for justifiable ends though reflecting on government, magistracy, or 
individuals." See Schofield, op. cit., 89 ff., for criticism of this defi- 
nition as not in the common law and as too narrow a definition of 
the conception of free speech. However, it is embodied in many state 
constitutions and statutes. Two out of four judges agreed with Ham- 
ilton. 



FREEDOM OF SPEECH IN WAR TIME 31 

ties, leaves the Blackstonian interpretation of free speech in 
America without a leg to stand on. And the brief attempt 
of Congress and the Federalist judges to revive the crime 
of sedition had proved so disastrous that it was not repeated 
during the next century. 

The lesson of the prosecutions for sedition in Great Britain 
and the United States during this revolutionary period, that 
the most essential element of free speech is the rejection of 
bad tendency as the test of a criminal utterance, was never 
more clearly recognized than in Jefferson's preamble to the 
Virginia Act for establishing Religious Freedom.®*' His 
words about religious liberty hold good of political and 
speculative freedom, and the portrayal of human life in 
every form of art. 

To suffer the civil Magistrate to intrude his powers into the 
field of opinion, and to restrain the profession or propagation of 
principles on supposition of their ill tendency, is a dangerous 
fallacy, which at once destroys all religious liberty, because he 
being of course judge of that tendency, will make his opinions 
the rule of judgment, and approve or condemn the sentiments of 
others only as they shall square with or differ from his own. 

Although the free speech clauses were directed primarily 
against the sedition prosecutions of the immediate past, it 
must not be thought that they would permit unlimited pre- 
vious restraint. They must also be interpreted in the light 
of more remote history. The framers of those clauses did 
not invent the conception of freedom of speech as a result 
of their own experience of the last few years. The idea had 
been gradually molded in men's minds by centuries of con- 
flict. It was the product of a people of whom the framers 
were merely the mouthpiece. Its significance was not fixed 
by their personality, but was the endless expression of a 

68 Act of December 26, 1785, 12 Hening's Statutes at Large of 
Virginia (1823), c. 34, page 84. Another excellent argument against 
the punishment of tendencies is found in Philip Furneaux, Letters to 
Blackstone, 2 ed., 60-63, London, 1771; quoted in State v. Chandler, 2 
Harr. (Del.) 653, 576 (1837), and in part by Schofield, op. cit., 77. 



32 FREEDOM OF SPEECH 

civilization.®^ It was formed out of past resentment against 
the royal control of the press under the Tudors, against the 
Star Chamber and the pillory, against the Parliamentary 
censorship which Milton condemned in his Areopagitica, 
by recollections of heavy newspaper taxation, by hatred of 
the suppression of thought which went on vigorously on the 
Continent during the eighteenth century. Blackstone's views 
also had undoubted influence to bar out previous restraint. 
The censor is the most dangerous of all the enemies of lib- 
erty of the press, and ought not to exist in this country unless 
made necessary by extraordinary perils. 

Moreover, the meaning of the First Amendment did not 
crystallize in 1791. The framers would probably have been 
horrified at the thought of protecting books by Darwin or 
Bernard Shaw, but " liberty of speech " is no more con- 
fined to the speech they thought permissible than " com- 
merce " in another clause is limited to the sailing vessels 
and horse-drawn vehicles of 1787. ^/Into the making of the 
constitutional conception of free speech have gone, not only 
men's bitter experience of the censorship and sedition prose- 
cutions before 1791, but also the subsequent development 
of the law of fair comment in civil defamation, and the phil- 
osophical speculations of John Stuart Mill. Justice Holmes 
phrases the thought with even more than his habitual felic- 
ity.®* v>* The provisions of the Constitution are not mathe- 
matical formulas having their essence in their form; they 
are organic living institutions transplanted from English 
soil." 

It is now clear that the First Amendment fixes limits upon 
the power of Congress to restrict speech either by a censor- 
ship or by a criminal statute, and if the Espionage Act ex- 
ceeds those limits it is unconstitutional. It is sometimes 
argued that the Constitution gives Congress the power to 
declare war, raise armies, and support a navy, that one pro- 
vision of the Constitution cannot be used to break down 

67 1 Kohler, Lehrbuch des Biirgerlichen Rechts, I, § 38. 
esGompers v. United States, 233 U. S. 604, 610 (1914). 



FREEDOM OF SPEECH IN WAR TIME 33 

another provision, and consequently freedom of speech can- 
not be invoked to break down the war power.^^ I would reply 
that the First Amendment is just as much a part of the 
Constitution as the war clauses, and that it is equally ac- 
curate to say that thp war clauses cannot be invoked to 
break down freedom of speech. The truth is that all pro- 
visions of the Constitution must be construed together so as 
to limit each other, vin a war as in peace, this process of mu- 
tual adjustment must include the Bill of Rights. ^ There 
are those who believe that the Bill of Rights can be set aside 
in war time at the uncontrolled will of the government.^" 
'(/The first ten amendments were drafted by men who had just 
been through a war. uThe Third and Fifth Amendments 
expressly apply in war. A majority of the Supreme Court 
declared the war power of Congress to be restricted by the 
Bill of Rights in Ex Parte Milligan,'^ which cannot be 
lightly brushed aside, whether or not the majority went too 
far in thinking that the Fifth Amendment would have pre- 
vented Congress from exercising the war power under the 
particular circumstances of that case. If the First Amend- 

69 United States v. Marie Equi, Bull. Dept. Just., No. 172, 21 (Ore,, 
1918), Bean, J. 

70 Henry J. Fletcher, " The Civilian and the War Power," 2 Minn. 
L. Rev. 110, expresses this view. See also Ambrose Tighe, "The Legal 
Theory of the Minnesota ' Safety Commission ' Act," 3 Minn. L. 
Rev. 1. 

714 Wall. (U. S.) 2 (1866). The judges all agreed that Congress 
had not authorized the trial of the petitioner by a military tribunal. 
The majority, per Davis, J., took the ground that the government can- 
not have recourse to extraordinary procedure until there are extraor- 
dinary conditions to justify it and that under the Bill of Rights the 
decision of Congress that such procedure is necessary can be reviewed 
by the courts. The minority, per Chase, C. J., declared that Con- 
gress is sole judge of the expediency of military measures in war 
time, and that the war power is not abridged by any Amendment. 
The majority view on this matter may be accepted by one who ques- 
tions their opinion that military tribunals are never justified outside 
the theater of active military operations in a place where the civil 
courts are open. It may be that military tribunals are necessary 
where the machinery of the civil courts cannot adequately meet the 
situation (3 Minn. L. Rev. 9), but the civil courts must eventually 
decide whether their machinery was adequate or not. Otherwise, in 
any war, no matter how small or how distant. Congress could put the 
whole coimtry under military dictatorship. 



34 FREEDOM OF SPEECH 

ment is to mean anything, it must restrict powers which 
are expressly granted by the Constitution to Congress, since 
Congress has no other powers. ^^ It must apply to those 
activities of government which are most liable to interfere 
with free discussion, namely, the postal service and the con- 
duct of war. 

^ The true meaning of freedom of speech seems to be this. 
One of the most important purposes of society and govern- 
ment is the discovery and spread of truth on subjects of 
general concern. This is possible only through absolutely 
unlimited discussion, for, as Bagehot points out, once force 
' is thrown into the argument, it becomes a matter of chance 
/ whether it is thrown on the false side or the true, and truth 
'loses all its natural advantage in the contest. Neverthe- 
less, there are other purposes of government, such as order, 
the training of the young, protection against external ag- 
gression. Unlimited discussion sometimes interferes with 
these purposes, which must then be balanced against free- 
dom of speech, but freedom of speech ought to weigh very 
heavily in the scale. The First Amendment gives binding 
force to this principle of political wisdom. 

Or to put the matter another way^it is useless to define 
free speech by talk about rights. The agitator asserts his 
constitutional right to speak, the government asserts its 
constitutional right to wage war. The result is a dead- 
lock. Each side takes the position of the man who was ar- 
rested for swinging his arms and hitting another in the 
nose, and asked the judge if he did not have a right to 
swing his arms in a free country. " Your right to swing 

72 United States Constitution, Art. T, § 1: "All legislative powers 
herein granted shall be vested in a Congress." Amendment X : " The 
powers not delegated to the United States by the Constitution, nor 
prohibited by it to the States, are reserved to the States respectively 
or to the people." 

" This government is acknowledged by all to be one of enumerated 
powers. The principle that it can exercise only the powers granted 
to it, would seem too apparent." — Marshall, C. J., in McCulloch v. 
Maryland, 4 Wheat. (U. S.) 316, 405 (1819). See also Taney, C, J,, 
in Ex parte Merryman, Taney, 236, 260 (1861), and Brewer, J,, in 
Kansas v. Colorado, 206 U. S. 46, 81 (1907). 



FREEDOM OF SPEECH IN WAR TIME 35 

your arms ends just where the other man's nose begins." 
.^To find the boundary line of any right, we must get behind 
rules of law to human facts. In our problem, we must re- 
gard the desires and needs of the individual human being 
who wants to speak and those of the great group of human 
beings among whom he speaks. That is, in technical lan- 
guage, there are individual interests and social interests, 
which must be balanced against each other, if they conflict, 
in order to determine which interest shall be sacrificed under 
the circumstances and which shall be protected and become 
the foundation of a legal right." It must never be forgot- 
ten that the balancing cannot be properly done unless all 
the interests involved are adequately ascertained, and the 
y^reat evil of all this talk about rights is that each side is 
so busy denying the other's claim to rights that it entirely 
overlooks the human desires and needs behind that claim. 

The rights and powers of the Constitution, aside from 
the portions which create the machinery of the federal sys- 
tem, are largely means of protecting important individual 
and social interests, and because of this necessity of bal- 
ancing such interests the clauses cannot be construed with 
absolute literalness. The Fourteenth Amendment and the 
obligation of contracts clause, maintaining important in- 
dividual interests, are modified by the police power of the 
states, which protects health and other social interests. The 
Thirteenth Amendment is subject to many implied excep- 
tions, sp that temporary involuntary servitude is permitted 
to secure social interests in the construction of roads, the 
prevention of vagrancy, the training of the militia or na- 
tional army. It is common to rest these implied exceptions to 
the Bill of Rights upon the ground that they existed in 1791 
and long before, but a less arbitrary explanation is desirable. 
Not everything old is good. Thus the antiquity of peonage 

73 This distinction between rights and interests clarifies almost any 
constitutional controversy. The distinction originated with von Ihering. 
For presentation of it in English, see John Chipman Gray, Nature and 
Sources of the Law, § 48 ff.; Roscoe Pound, "Interests of Personality," 
28 Harv. L. Rev, 453. 



36 FREEDOM OF SPEECH 

does not constitute it an exception to the Thirteenth Amend- 
ment ; it is not now demanded by any strong social interest. 
It is significant that the social interest in shipping which 
formerly required the compulsory labor of articled sailors 
is no longer recognized in the United States as sufficiently 
important to outweigh the individual interest in free loco- 
motion and choice of occupation. Even treaties providing 
for the apprehension in our ports of deserting foreign sea- 
men have been abrogated by the La Follette Seamen's Act. 
The Bill of Rights does not crystallize antiquity. It seems 
better to say that long usage does not create an exception to 
the absolute language of the Constitution, but demonstrates 
the importance of the social interest behind the exception.^* 
y^/The First Amendment protects two kinds of interests in 
free speech. vThere is an individual interest, the need of 
many men to express their opinions on matters vital to them 
if life is to be worth living, and''a social interest in the attain- 
ment of truth, so that the country may not only adopt the 
wisest course of action but carry it out in the wisest way. 
v^his social interest is especially important in war time. 
Even after war has been declared there is bound to be a 
confused mixture of good and bad arguments in its support, 
and a wide difference of opinion as to its objects. '' Truth 
can be sifted out from falsehood only if the government is vig- 
orously and constantly cross-examined, so that the funda- 
mental issues of the struggle may be clearly defined, and the 
war may not be diverted to improper ends, or conducted with 
an undue sacrifice of life and liberty, or prolonged after its 
just purposes are accomplished. \ Legal proceedings prove 
that an opponent makes the best cross-examiner. Conse- 
quently it is a disastrous mistake to limit criticism to those 
who favor the war. Men bitterly hostile to it may point 
out evils in its management like the secret treaties, which 

74 This paragraph rests on Butler v. Perry, 240 U. S. 328 (1916); 
Robertson v. Baldwin, 165 U. S. 275, 281 (1897); Bailey v. Alabama, 
219 U. S. 219 (1911); Act of March 4, 1915, c. 153, § 16, U. S. Comp. 
Stat, 1918, § 8382 a; Hurtado v. California, 110 U. S. 516 (1884). 



FREEDOM OF SPEECH IN WAR TIME 37 

its supporters have been too busy to unearth. If a free can- 
vassing of the aims of the war by its opponents is crushed by 
the menace of long imprisonment, such evils, even though 
made public in one or two newspapers, may not come to the 
attention of those who had power to counteract them until 
too late." 

The history of the last five years shows how the objects 
of a war may change completely during its progress, and 
it is well that those objects should be steadily reformulated 
under the influence of open discussion not only by those 
who demand a military victory, but by pacifists who take 
a different view of the national welfare. Further argu- 
ment for the existence of this social interest becomes unnec- 
essary if we recall the national value of the opposition in 
former wars. 

./The great trouble with most judicial construction of the 
Espionage Act is that this social interest has been ignored 
and free speech has been regarded as merely an individual 
interest, which must readily give way like other personal 
desires the moment it interferes with the social interest in 
national safety. The judge who has done most to bring 
social interests into legal thinking said years ago, " I think 
that the judges themselves have failed adequately to rec- 
ognize their duty of weighing considerations of social advan- 
tage. The duty is inevitable, and the result of the often 
proclaimed judicial aversion to deal with such considera- 
tions is simply to leave the very ground and foundation 
of judgments inarticulate and often unconscious." ^^ The 
failure of the courts in the past to formulate any principle 
for drawing a boundary line around the right of free speech 
has not only thrown the judges into the difficult questions 

T5 " Senator Borah — ' Then we had no knowledge of these secret 
treaties so far as our Government was concerned until you reached 
Paris?' 

" The President — ' Not unless there was information at the State 
Department of which I knew nothing.' " — N. Y. Times, Aug. 20, 1919. 

76 Oliver Wendell Holmes, "The Path of the Law," 10 Harv. L. 
Rev. 457, 467. 



38 FREEDOM OF SPEECH 

of the Espionage Act without any well-considered standard 
of criminality, but has allowed some of them to impose stand- 
ards of their own and fix the line at a point which makes 
all opposition to this or any future war impossible. For 
example : 

No man should be permitted, by deliberate act, or even unthink- 
ingly, to do that which will in any way detract from the efforts 
which the United States is putting forth or serve to postpone 
for a single moment the early coming of the day when the success 
of our arms shall be a fact.'^^ 

The true boundary line of the First Amendment can be 
fixed only when Congress and the courts realize that the 
principle on which speech is classified as lawful or unlawful 
involves the balancing against each other of two very im- 
portant social interests, in public safety and in the search 
for truth. Every reasonable attempt should be made to 
maintain both interests unimpaired, and the great interest 
in free speech should be sacrificed only when the interest . 
in public safety is really imperiled, and not, as most men 
believe, when it is barely conceivable that it may be slightly 
affected. '. In war time, therefore, speech should be unre- 
stricted by the censorship or by punishment, unless it is 
clearly liable to cause direct and dangerous interference 
with the conduct of the war. 

Thus our problem of locating the boundary line of free 
speech is solved. It is fixed close to the point where words 
will give rise to unlawful acts. We cannot define the right 
of free speech with the precision of the Rule against Per- 
petuities or the Rule in Shelley's Case, because it involves 
national policies which are much more flexible than private 
property, but we can establish a workable principle of classi- 
fication in this method of balancing and this broad test of 
certain danger. There is a similar balancing in the deter- 
mination of what is " due process of law." We can insist 

77 United States v. " The Spirit of '76," 252 Fed. 946, Another good 
example is United States v. Schoberg, Bull. Dept. Just., No. 149. 



FREEDOM OF SPEECH IN WAR TIME 39 

upon various procedural safeguards which make it more 
probable that a tribunal will give the value of open dis- 
cussion its proper weight in the balance. Fox's Libel Act 
is such a safeguard, and others will be considered in the 
next chapter. And we can with certitude declare that the 
First Amendment forbids the punishment of words merely 
for their injurious tendencies. The history of the Amend- 
ment and the political function of free speech corroborate 
each other and make this conclusion plain. 



CHAPTER II 
OPPOSITION TO THE WAR WITH GERMANY 

Vital as is the necessity in time of war not to hamper acts of 
the executive in the defense of the nation and in the prosecution 
of the war, of equal and perhaps greater importance, is the pre- 
servation of constitutional rights. — Judge Mayer, in Ex parte 
Gilroy, 257 Fed. 110, 114 (1919). 

On April 6, 1917, Congress declared war against Germany. 
On May 18 it enacted the Selective Service Act for raising 
a National Army. The people, by an overwhelming major- 
ity, believed conscription to be a necessary and just method 
of waging an unavoidable war, and the machinery for enforc- 
ing the draft by civilian aid was admirably planned. " The 
result," says Attorney General Gregory,^ " was that the ulti- 
mate opposition to the draft by those liable was surpris- 
ingly small, considering the persistent propaganda carried on 
against the policy of the law and against its constitution- 
ality." And his Assistant, Mr. John Lord O'Brian, adds, 
*' No anti-draft propaganda had the slightest chance of 
success." The decision of the Supreme Court sustaining 
the validity of the statute ^ merely fulfilled the general ex- 
pectation. 

Besides the military and civilian organization for reach- 
ing the men who were liable to registration and subsequently 
called into service, the government had at its disposal sev- 
eral criminal statutes enacted during the Civil War, which it 
could and did use to punish conspiracies to resist recruiting 
and conscription by riots ^ and other forcible means, or seek- 
ing by speeches and publications to induce men to evade the 

1 Report of the Attorney General, 1917, p. 74. " Civil Liberty in War 
Time," John Lord O'Brian, 42 Rep. N. Y. Bar Assn. 275, 291 (1919), 
cited hereafter as O'Brian. 

2 Selective Draft Law Cases, 245 U. S. 366 (1918). 

8 Bryant v. U. S., 257 Fed. 378 (C. C. A., 1919) ; Orear v. U. S., 261 

40 



THE WAR WITH GERMANY 41 

draft.* In some respects, however, these statutes were felt to 
be incomplete. It was not a crime to persuade a man not to 
enlist voluntarily, and an attempt by an isolated individual to 
obstruct the draft, if unsuccessful, was beyond the reach of 
the law, unless his conduct was sufficiently serious to amount 
to treason. The treason statute, the only law on the books 
affecting the conduct of the individual, was of little service,^ 
.since there was considerable doubt whether it applied to 
utterances. Therefore, although it is probable that under 
the circumstances the existing conspiracy statutes would 
have met any serious danger to the prosecution of the war, 
new legislation was demanded. 

If the government had been content to limit itself to 
meeting the tangible needs just mentioned, the effect on dis- 
cussion of the war would probably have been very slight, 
for treason, conspiracies, and attempts constitute a direct 
and dangerous interference with the war, outside the pro- 
tection of freedom of speech as defined in the preceding 
chapter. Two additional factors, however, influenced the 
terms of the new statutes, and even more the spirit in which 
they were enforced. First, came the recollection of the oppo- 
sition during the Civil War, which was handled under mar- 
tial law in so far as it was suppressed at all, a matter which 
I shall take up later. Some persons, full of old tales of 
Copperheads, were for stigmatizing all opponents of this 
war as traitors. Senator Chamberlain of Oregon intro- 
duced a bill which made the whole United States " a part 
of the zone of operations conducted by the enemy," and de- 
clared any person who endangered or interfered with the 
successful operation of our forces by publishing anything 

Fed. 257 (C. C. A., 1919) ; U. S. v. Reeder, Bull. Dept. Just., No. 161 
(1918); Reports of the Attorney General, 1917, p. 75; 1918, p. 45. 

4 Emma Goldman v. U. S., 245 U. S. 474 (1918); Wells v. U. S., 257 
Fed. 605 (C. C. A., 1919); U. S. v. Phillips, Bull. Dept. Just., No. 14 
(1917); and other cases in the bulletins; Reports of the Attorney Gen- 
eral, supra. 

5 O'Brian, 277, Among the treason cases of the war were U. S. v. 
Werner, 247 Fed. 708 (1918), and Nelles, Espionage Act Cases, 4, 
cited hereafter as Nelles ; U. S. v. Robinson, 269 Fed. 685 (1919); 
U. S. V, Fricke, 259 Fed. 673 (1919). See Bibliography, on treason. 



42 FREEDOM OF SPEECH 

J" to be a spy subject to trial by court martial and the penalty 
.of death. The bill was dropped upon receipt of a letter 

ffrom the President, in which he attacked the constitution- 
ality and advisability of the law.^ Whatever control was 

iexercised over civilians should be through the ordinary courts, 
and it was evident that the conspiracy statutes did not make 

. that possible on a large scale. The second factor was the fear 
of German propaganda and the knowledge of legislation and 
administrative regulations guarding against it in Great Brit- 
ain ' and Canada.* Although we did not adopt the British 
administrative control, which combined flexibility with possi- 
bilities of despotism, it was easy to forget our own policy 
of non-interference with minorities and put the United States 
also in a position to deal severely with written and spoken 
opposition to the war, 

I. The Espionage Acts of 1917 and 1918 

The result of these various influences was the third sec- 
tion of Title I of the Espionage Act. As originally enacted 
on June 15, 1917, this section established three new offenses : ^ 

( 1 ) Whoever, when the United States is at war, shall willfully 
make or convey false reports or false statements with intent to 
interfere with the operation or success of the military or naval 

^-'' 6 "Freedom of Speech and of the Press in War Time: the Espionage 

y Act," Thomas F.' Carroll, 17 Mich. L. Rev. 663 note; cited hereafter as 

/ Carroll. Such a bill seems clearly unconstitutional in view of the Fifth 

( Amendment and Ex parte Milligan. See note 71 in Chapter I. 

^'^- 7 The Defense of the Realm Consolidation Act, 1914, 5 Geo. 5, c. 

8, §1, gives His Majesty in Council power "to issue regulations." A 

very wide scope is given to this power by the House of Lords in Rex 

V. Halliday (1917) A. C. 260, Lord Shaw of Dunfermline dissenting. 

See 31 Harv. L. Rev. 296. Regulation 27 of the Orders in Council 

makes various forms of speech, writing, etc., offenses. Regulation 51 A 

provides for the seizure of publications on warrant, and Regulation 56 

(13) for the punishment of press offenses. See Pulling, Defense of the 

Realm Manual, revised monthlv. These regulations have been construed 

in Norman v. Mathews, 32 T. L. R. 303, 369 (1915); Fox v. Spicer, 33 

T. L. R. 172 (1917); Rex v. Bertrand Russell, infra, note 37. The 

practical effect has been to establish an administrative censorship. H. J. 

Laski, Authority in the Modern State, 101. 

8 Carroll, ll'Mich. L. Rev. 621 note. 

9 Act of June 15, 1917, c. 30, Title I, § 3. The numerals are in- 
serted by me. 



THE WAR WITH GERMANY 43 

forces of the United States or to promote the success of its enemies 
(2) and whoever, when the United States is at war, shall willfully 
cause or attempt to cause insubordination, disloyalty, mutiny, or 
refusal of duty, in the military or naval forces of the United 
States, (3) or shall willfully obstruct the recruiting or enlistment 
service of the United States, to the injury of the service or of the 
United States, shall be punished by a fine of not more than 
$10,000 or imprisonment for not more than twenty years, or both. 

Although most of the Espionage Act deals with entirely 
different subjects, like actual espionage, the protection of 
military secrets, and the enforcement of neutrality in future 
conflicts between other nations, the section just quoted is 
buttressed by four provisions. Section 4 of the same Title 
punishes persons conspiring to violate section 3, if any one 
of them does any act to effect the object of the conspiracy. 
Section 5 imposes a penalty of $10,000 or two years' impris- 
onment for harboring or concealing any person suspected of 
committing or being about to commit any of the offenses 
already mentioned. Title XI authorizes the issue of search 
warrants for the seizure of property used as the means of 
committing a felony, which would include violations of the 
section just quoted. It was under this provision that the 
moving-picture film was confiscated in the Spirit of '76 
case, and raids were made on the offices of anti-war organiza- 
tions. Finally, Title XII made non-mailable any matter vio- 
lating the Act, or advocating treason, insurrection, or forci- 
ble resistance to any law of the United States, directed that 
it should not be conveyed or delivered, and imposed heavy 
penalties for attempting to use the mails for its transmission. 

Attorney General Gregory reports that, although this 
Act proved an effective instrumentality against deliberate 
or organized disloyal propaganda, it did not reach the in- 
dividual casual or impulsive disloyal utterances. Also some 
District Courts gave what he considered a narrow construc- 
tion of the word "obstruct " in clause (3), so that, as he 
puts it, " most of the teeth which we tried to put in were 
taken out." " 

104 Am. Bar Assoc. Journ. 306. 



44. FREEDOM OF SPEECH 

/ These individual disloyal utterances, however, occurring with 
jconsiderable frequency throughout the country, naturally irritated 
land angered the communities in which they occurred, resulting 
Isometimes in unfortunate violence and lawlessness and everywhere 
jin dissatisfaction with the inadequacy of the Federal law to reach 
I such cases. Consequently there was a popular demand for such 
/an amendment as would cover these cases.^^ 

The history of what then happened in Congress is not 
without interest. The Attorney General asked for a brief 
amendment of the Act by the addition of attempts to 
obstruct the recruiting service, and the punishment of efforts 
intentionally made for the purpose of discrediting and in- 
terfering with the flotation of war loans. The Senate Com- 
mittee on the Judiciary, being thus stirred up, took the bit 
in its teeth, and decided to stamp on all utterances of a dis- 
loyal character. It went for a model of legislation affect- 
ing freedom of discussion to a recent sedition statute of 
the state of Montana, and borrowed a large number of its 
clauses for the new federal law. While tliis measure was 
pending in Congress it was proposed to incorporate a pro- 
vision exempting anti-war utterances if made with good 
motives and for justifiable ends. Mr. Gregory informed 
Congress that the experience of his department had shown 
" that some of the most dangerous types of propaganda 
were either made from good motives or else that the trait- 
orous motive was not provable," and that the defense would 
" in effect destroy the value of the Espionage Act as a 
weapon against propaganda." The bill became law without 
the proviso. 

This amendment of May 16, 1918,^^ which is sometimes 
called the Sedition Act, inserted " attempts to obstruct " 
in the third of the original offenses, and added nine more 
offenses, as follows: (4) saying or doing anything with in- 
tent to obstruct the sale of United States bonds, except by 

11 The history of the amendment is taken from Report of the 
Attorney General of the United States (1918), 18; and O'Brian, 302. 
See Montana Laii^s, 1918, sp., c. 11. 

12 The full text of this Amendment is in Appendix III, 



THE WAR WITH GERMANY 45 

way of bona fide and not disloyal advice; (5) uttering, print- 
ing, writing, or publishing any disloyal, profane, scurrilous,!^ 
or abusive language, or language intended to cause contempt, J 
scorn, contumely or disrepute as regards the form of govern- 
ment of the United States; (6) or the Constitution; (7) 
or the flag; (8) or the uniform of the Army or Navy; (9) 
or any language intended to incite resistance to the United 
States or promote the cause of its enemies; (10) urging 
any curtailment of production of any things necessary to 
the prosecution of the war with intent to hinder its prose- 
cution; (11) advocating, teaching, defending, or suggesting 
the doing of any of these acts; and (12) words or acts sup- 
porting or favoring the cause of any country at war with 
us, or opposing the cause of the United States therein. 
Whoever commits any one of these offenses in this or any 
future war is liable to the maximum penalty of the original 
act, $10,000 fine or twenty years' imprisonment, or both. 

The buttressing provisions of the Act of 1917 apply to 
this 1918 Act and the non-mailable provision is made still 
more severe. The Postmaster General can now, if " on evi- 
dence satisfactory to hhn " he thinks anything mailed con- 
stitutes any one of the twelve offenses of the Sedition Act, 
prevent the sender from receiving any mail at all, however 
innocent. Without any jury trial or hearing before a judge, 
the citizen in question becomes for the post-office an outlaw. 

The Espionage Act of 1918 has been defended on the 
ground that when the public found that many obnoxious 
utterances were regarded by United States District Attor- 
neys as outside the simple Act of 1917, loyal people would 
take matters into their own hands. Two lynchings and many 
horsewhippings and tar-and-featherings had occurred, and 
over two hundred miners, mostly members of the I. W. W., 
were forcibly deported from their homes in Bisbee, Arizona, 
into the desert.^^ Congress responded to this outcry by the 

13 See note 11. Many cases of mob violence are listed on pp. 5-13 
of War-time Prosecutions and Mob Violence, N. Y., 1919. , The 
Bisbee deportations were held not to be a federal crime, U. S. v. 
Wheeler, 254 Fed. 611 (1918). State prosecutions are now pending. 



46 FREEDOM OF SPEECH 

passage of the Sedition Law. Doubtless some governmen- 
tal action was required to protect pacifists and extreme 
radicals from mob violence, but incarceration for a period 
of twenty years seems a very queer kind of protection. If 
Congress had adopted some plan by which persons outside the 
existing conspiracy statutes whose speeches and writings were 
really causing trouble could be tried and confined until the 
actual emergency was passed, and in no case beyond the 
termination of hostilities, this would have prevented every 
danger to such men, and, what is more, every danger from 
them, and would have accorded with the preventive but not 
punitive policy pursued by Lincoln in the Civil War toward 
his most disloyal opponents. Instead, many persons con- 
victed under the Espionage Act remained out on bail for 
months, often until the war was over, so that all the pre- 
ventive purposes of the statute were defeated, and then were 
sent to prison for years." 

The chief importance of the new crimes created by the 
Espionage Act of 1918 is in their effect on future wars, for 
the amendment came so late in this war that all the big 
cases, except the Abrams prosecution, turned on the mean- 
ing of the three original offenses of the 1917 Act or on " at- 
tempts to obstruct." As the Abrams case is reserved for a 
chapter by itself, I shall hereafter in this chapter confine 
myself to those three offenses except when I expressly refer 
to the statute of 1918. 

II. Masses Publishing Co. v. Patten 

■^ The framers of the First Amendment knew that the right to 
criticise might weaken the support of the Government in a time 
of war. They appreciated the value of a united public opinion 
at such a time. They were men who had experienced all those 
things in the war of the Revolution, and yet they knew too 
that the republic which they were founding could not live unless 
the right of free speech, of freedom of the press was maintained 
at such a time. They balanced these considerations and then 
wrote the First Amendment. — Judge Charles F. Amidon. 

"CBrian, 311. 



THE WAR WITH GERMANY 47 

The Espionage Act of 1917 seems on its face constitu- 
tional under the interpretation of the First Amendment 
reached in this book, but it may have been construed so 
extremely as to violate the Amendment. Furthermore, free- 
dom of speech is not only a limit on Congressional power, 
but a policy to be observed by the courts in applying con- 
stitutional statutes to utterance. The scope of that policy 
is determined by the same method of balancing social in- 
terests. The boundary line of punishable speech under this 
Act was consequently fixed at the point where words come 
close to injurious conduct by that judge who during the war 
gave the fullest attention to the meaning of free speech, — 
Judge Learned Hand, of the Southern District of New York. 

In Masses Publishing Co. v. Patten ^^ Judge Hand was 
asked to enjoin the postmaster of New York from exclud- 
ing from the mails the August issue of The Masses, a monthly 
revolutionary journal, which contained several articles, 
poems, and cartoons attacking the war. When noti- 
fied of the exclusion, the publisher had offered to delete 
any passages pointed out by the postmaster, but was re- 
fused such information. After suit was started, the 
postmaster, while objecting generally that the whole pur- 
port of the number was unlawful, since it tended to encour- 
age the enemies of the United States and hamper the gov- 
ernment in the conduct of the war, specified four cartoons, 
entitled "Liberty Bell," "Conscription," "Making the 
World Safe for Capitalism," and " Congress and Big Busi- 
ness " ; also a poem, which declared Emma Goldman and 
Alexander Berkman, who were in prison for conspiracy to 
resist the draft, to be " elemental forces " — 

Like the water that climbs down the rocks; 

Like the wind in the leaves; 

Like the gentle night that holds us. 

He also objected to three articles admiring the ** sacri- 
fice " of conscientious objectors, and praising Goldman and 
Berkman as " friends of American freedom." 
"244 Fed. 636 (S. D. N. Y., 1917). 



48 FREEDOM OF SPEECH 

The Espionage Act, it will be remembered, made non- 
mailable any publication which violated the criminal pro- 
visions of the section already quoted. One important issue 
was, therefore, whether the postmaster was right in finding 
such a violation. The case did not raise the constitutional 
question whether Congress could make criminal any matter 
which tended to discourage the successful prosecution of the 
war, but involved only the construction of the statute, 
whether Congress had as yet gone so far. Judge Hand held 
that it had not and granted the injunction. He refused to 
turn the original Act, which obviously dealt only with in- 
terference with the conduct of military affairs,'^^ into a pro- 
hibition of all kinds of propaganda and a means for sup- 
pressing all hostile criticism and all opinion except that 
which encouraged and supported the existing policies of the 
war, or fell within the range of temperate argument. As 
Cooley pointed out long ago, you cannot limit free speech 
to pohte criticism, because the greater a grievance the more 
likely men are to get excited about it, and the more urgent 
the need of hearing what they have to say.^^ The normal 
test for the suppression of speech in a democratic govern- 
ment. Judge Hand insists, is neither the justice of its sub- 
stance nor the decency and propriety of its temper, but the 
strong danger that it will cause injurious acts. The Es- 
pionage Act should not be construed to reverse this national 
policy of liberty of the press and silence hostile criticism, 
unless Congress had given the clearest expression of such an 
intention in the statute. 

Congress had shown no such intention. Moreover, whether 



16 The plain fact that the original Espionage Act is a military 
statute and not a sedition statute is also recognized by United States 
V. Fontana, Bull. Dept. Just., No. 148 (N. D, 1917), Amidon, J.; 
United States v. Wishek, Bull. Dept. Just., No. 163 (N. D., 1917), 
Amidon, J.; United States v. Henning, Bull. Dept. Just., No. 184 
(Wis., 1917), Geiger, D. J.; and implied by other cases. The large 
number of cases which ignore the clear meaning of the statute is 
astounding in view of the rule that criminal statutes must be con- 
strued strictly. 

17 Cooley, Constitutional Limitations, 7 ed.^ 613. 



THE WAR WITH GERMANY 4.9 

or not it could create a personal censorship of the press 
under the war power, it had not yet done so. Since the 
portions of The Masses selected by the postmaster did not 
actually advocate violence, he had no right to suppress the 
magazine " on the doctrine that the general tenor and animus 
of the paper were subversive to authority and seditious in 
effect." 

The tradition of English-speaking freedom has depended in no 
small part upon the merely procedural requirement that the state 
point with exactness to just that conduct which violates the law. 
It is difficult and often impossible to meet the charge that one's 
general ethos is treasonable. 

Judge Hand places outside the limits of free speech one 
who counsels or advises others to violate existing laws. 
Language is not always exempt from punishment. " Words 
are not only the keys of persuasion, but the triggers 
of action, and those which have no purport but to 
counsel the violation of law cannot by any latitude of in- 
terpretation be a part of that public opinion which is the 
final source of government in a democratic state." It is also 
true, he says, that any discussion designed to show that ex- 
isting laws are mistaken in means or unjust in policy may 
result in their violation. Nevertheless, if one stops short of 
urging upon others that it is their duty or their interest to 
resist the law, he should not be held to have attempted to 
cause illegal conduct. If this is not the test, the 1917 Act 
punishes every political agitation which can be shown to be 
apt to create a seditious temper. The language of the 
statute proves that Congress had no such revolutionary pur- 
pose in view. 

According to this view, criminality under the Espionage 
Act of 1917 would be determined by an objective test, the 
nature of the words used. The jury could pass on this much 
better than on questions of political and economic tendency. 
Moreover, the Act would have a meaning easily understood 
by the opponents of the war. They could safely engage in 



50 FREEDOM OF SPEECH 

discussion of its merits and the justice of war policies, so 
long as they refrained from urging violation of laws. The 
Act, thus interpreted, does not go to the limits of Congress- 
ional power as I have construed them. Under some circum- 
stances an expression of opinion which does not counsel any 
unlawful act may be highly dangerous. Even Mill would 
punish a statement that grain-dealers are starvers of the 
poor, or that private property is robbery, when delivered 
orally to an excited mob assembled before the house of a 
grain-dealer.^® A scathing analysis of the incompetence 
of the commanding general circulated among the troops on 
the eve of battle would be a direct and dangerous inter- 
ference with the war. But military law would deal with this 
offense within the lines, and the law of illegal assembly will 
come into play elsewhere, as in Mill's case. There is no 
need to make the expression of opinion in itself criminal. 
It has not been so normally in this country, especially not 
under federal law, and the Espionage Act of 191T (unlike 
that of 1918) contains nothing to indicate such an inter- 
ference with the attainment and disstemination of truth. 
That statute by its terms fills in the gap between the treason 
and the conspiracy laws by reaching the individual who 
actually attempts or incites interference with the war, 
whether by acts like assaulting a recruiting officer or by 
words whose tenor shows that they have very little to do 
with the social interest in truth, since they do not discuss 
the merits of the war, but counsel immediate and injurious 
acts. In other words, Congress was punishing dangerous 
acts and such words as had all the effect of acts, because 
they could have no other purpose but a direct and dan- 
gerous interference with the war. 

There was during the war no finer judicial statement of 
the right of free speech than these words of Judge Hand: 

Political agitation, by the passions it arouses or the convictions 
it engenders, may in fact stimulate men to the violation of law. 

18 Mill, Liberty, opening of c. 3. 



THE WAR WITH GERMANY 61 

Detestation of existing policies is easily transformed into forcible 
resistance of the authority which puts them in execution, and it 
would be folly to disregard the causal relation between the two. 
Yet to assimilate agitation, legitimate as such, with direct incite- 
ment to violent resistance, is to disregard the tolerance of all 
methods of political agitation which in normal times is a safe- 
guard of free government. The distinction is not a scholastic 
subterfuge, but a hard-bought acquisition in the fight for freedom. 

Look at the Espionage Act of 1917 ^^ with a post-armistice 
mind, and it is clear that Judge Hand was right. There 
is not a word in it to make criminal the expression of pacifist 
or pro-German opinions. It punishes false statements and 
reports — necessarily limited to statements of fact — but be- 
yond that does not contain even a provision against the 
use of language. It differs entirely from the Act of 1918, 
and from state laws making utterances criminal for their 
own sake as nuisances or breaches of the peace. Utterances 
(except false statements) are punishable, if at all, because 
of their relation to specified acts. Clauses (2) and (3) 
punish successful interference with military affairs and at- 
tempts to interfere, which would probably include incite- 
ment.^** The tests of criminal attempt and incitement are 
well settled.^^ The first requirement is the intention to bring 
about the overt criminal act. But the law does not punish 
bad intention alone, or even everything done with a bad in- 
tention. A statute against murder will not be construed to 
apply to discharging a gun with the intention to kill a man 
forty miles away. Writing a letter to a firm in San Fran- 
cisco requesting a shipment of liquor into Alaska is not an 
attempt to import liquor into Alaska until it is brought near 
the borders, headlands, or waters of that territory. At- 
tempts and incitement to be punishable must come danger- 
is See page 42, supra, for text of the Act. 

20 Attempts do not ordinarily include solicitation, see Beale, infra, 
16 Harv. L. Rev. 491, 506 note 1; but attempts to commit offenses 
under the 1917 Espionage Act would naturally be by incitement. 

21 Joseph H. Beale, "Criminal Attempts," 16 Harv. L. Bev. 491; U. S. 
V. Stephens, 12 Fed. 52. See also 32 Harv, L. Bev. 417. 



52 FREEDOM OF SPEECH 

ously near success, and bad intention is merely one modify- 
ing factor in determining whether the actual conduct is thus 
dangerous. A speaker is guilty of solicitation or incite- 
ment to a crime only if he would have been indictable for 
the crime itself, had it been committed, either as accessory 
or principal.^^ Of course his liabiUty when nothing really 
happens will not be greater than if his conduct leads to 
actual crime. Now even in that event, at common law the 
utterer of written or spoken words is not criminally liable 
merely because he knows they wiU reach those who may find 
in them the excuse for criminal acts. The assassin of Presi- 
dent McKinley may have been influenced by the denunciatory 
cartoons of " Willy and his Papa " in the Hearst news- 
papers, but the artist was not an accessory to the murder. 

Wharton, a leading writer on criminal law, shows how 
wise the common law was in refusing to establish any rule of 
indirect causation with respect to utterances: 

For we would be forced to admit, if we hold that solicitations 
to criminality are generally indictable, that the propagandists, 
even in conversation, of agrarian or communistic theories are liable 
to criminal prosecutions ; and hence the necessary freedom of 
speech and of the press would be greatly infringed. It would be 
hard, also, we must agree, if we maintain such general responsibil- 
ity, to defend, in prosecutions for soliciting crime, the publishers 
of Byron's Don Juan, of Rousseau's Emile, or of Goethe's 
Elective Affinities. Lord Chesterfield, in his letters to his son, 
directly advises the latter to form illicit connections with married 
women ; Lord Chesterfield, on the reasoning here contested, would 
be indictable for solicitation to adultery. Undoubtedly, when such 
solicitations are so publicly and indecently made as to produce 
public scandal, they are indictable as nuisances or as libels. But 
to make bare solicitations or allurements indictable as attempts, 
not only unduly and perilously extends the scope of penal ad- 
judication, but forces on the courts psychological questions which 
they are incompetent to decide, and a branch of business which 
would make them despots of every intellect in the land.^^ 

22 See Beale, supra, 16 Harv. L. Rev. 491, 505. Under the federal 
statutes he would be a principal. Rev. Stat. §§ 5323, 5427; March 4, 
1909, c. 821, §332; U. S. Comp. Stat., 1918, § 10506 (Crim. Code, §332). 

23 Wharton, Criminal Law, I (9 ed.), § 179. 



THE WAR WITH GERMANY 53 

On the contrary, the rule has always been that, to estab- 
lish criminal responsibility, the words uttered must consti- 
tute dangerous progress toward the consummation of the 
independent offense attempted and amount to procurement, 
counsel, or command to commit the forbidden acts."* This 
standard can be applied, not only to attempts to cause in- 
subordination and obstruction of the draft, where the ulti- 
mate result would be a crime, but also to the persuasion of 
men not to volunteer. Their failure to enlist is not a crime, 
but is a serious injury to the government. The speaker is 
interfering with the right of the army to a free labor mar- 
ket, in a manner analogous to picketing and boycotting in 
private business, which often constitute civil wrongs, com- 
pensated by damages. ^° Such interference may justly be 
made criminal, but only if it is direct and dangerous, for 
the measure of liability ought not to be larger than for 
solicitation to a criminal result like evasion of the draft.^® 

Consequently, no one should have been held under clauses 
(2) and (3) of the Espionage Act of 1917 who did not sat- 
isfy these tests of criminal attempt and incitement. As 
Justice Holmes said in Commonwealth v. Peaslee,^^ " It is a 
question of degree." We can suppose a series of opinions, 
ranging from " This is an unwise war " up to " You ought 
to refuse to go, no matter what they do to you," or an 
audience varying from an old women's home to a group of 
drafted men just starting for a training camp. Somewhere 
in such a range of circumstances is the point where direct 
causation begins and speech becomes punishable as incite- 
ment under the ordinary standards of statutory construction 

24 4 Blackstone's Commentaries 36. 

25Gompers v. Bucks Stove and Range Co., 221 U. S. 418 (1911); 
Vegelahn v. Guntner, 167 Mass. 92 (1896). The boycott may become 
a crime under the Sherman Law, Loewe v. Lawlor (Danbury Hatters' 
Case), 208 U. S. 274 (1908). 

26 See Hand in U. S. v. Nearing, 252 Fed. 223, 227 (1918). The 
same principle applies to interference with Liberty Bond sales under the 
1918 Act. 

27 177 Mass. 267, 272 (1901). See also his opinion in Swift v. U. S., 
196 U. S. 375, 396 (1905). 



54 FREEDOM OF SPEECH 

and the ordinary policy of free speech, which Judge Hand 
applied. Congress could push the test of criminality 
back beyond this point, although eventually it would reach 
the extreme hmit fixed by the First Amendment, beyond 
which words cannot be restricted for their remote tendency 
to hinder the war.^* In other words, the ordinary tests pun- 
ish agitation just before it begins to boil over; Congress 
could change those tests and punish it when it gets really 
hot, but it is unconstitutional to interfere when it is merely 
warm. And there is not a word in the 1917 Espionage Act 
to show that Congress did change the ordinary tests or 
make any speech criminal except false statements and in- 
citement to overt acts. Every word used, " cause," " at- 
tempt," " obstruct," clearly involves proximate causation, 
a close and direct relation to actual interference with the 
operations of the army and navy, with enlistment and the 
draft. Finally, this is a penal statute and ought to be con- 
strued strictly. Attorney General Gregory's charge that 
judges like Learned Hand " took the teeth " out of the 
1917 Act ^^ is absurd, for the teeth the government wanted 
were never there until other judges in an excess of patriotism 
put in false ones. 

Nevertheless, Judge Hand was reversed ^° on a point of 
administrative law, that the postmaster's decision must stand 
unless clearly wrong,^^ but the Circuit Court of Appeals 
thought it desirable to reject his construction of the Espion- 
age Act and substitute the view that speech is punishable 
under the Act " if the natural and reasonable effect of what 
is said is to encourage resistance to law, and the words are 
used in an endeavor to persuade to resistance." His ob- 
jective test of the nature of the words was considered un- 

28 See the quotation from Justice Brandeis, page 99, infra. 

29 See note 10, svpra. 

30 Masses Pub. Co. v. Patten, 245 Fed. 102 (C. C. A. 2d, 1917), 
Hough, J., stayed the injunction; ibid. 246, Fed. 24 (C. C. A. 2d, 1917), 
Ward, Rogers,' and Mayer, J J., reversed the order granting the injunc- 
tion. 

31 See for authorities against this proposition, 32 Harv. L. Rev. 417, 
420. See page 106, infra, VI. Censorship; also Chapter V. 



THE WAR WITH GERMANY 55 

sound. Advice in direct language was repudiated as a requi- 
site of guilt. Judge Hough used the Sermon on the Mount 
as a precedent for the government's war policy : " It is at 
least arguable whether there can be any more direct incite- 
ment to action than to hold up to admiration those who do 
act. . . The Beatitudes have for some centuries been con- 
sidered highly hortatory, though they do not contain the in- 
junction: 'Go thou and do likewise.'" It is possible that 
the Court of Appeals did not intend to lay down a very 
different principle from Judge Hand, but chiefly wished to 
insist that in determining whether there is incitement one 
must look not only at the words themselves but also at the 
surrounding circumstances which may have given the words 
a special meaning to their hearers. Judge Hand agrees with 
this, and regards Mark Antony's funeral oration, for in- 
stance, as having counseled violence while it expressly dis- 
countenanced it. However, the undoubted effect of the final 
decision in Masses v. Patten was to establish the old-time 
doctrine of remote bad tendency in the minds of district 
judges throughout the country. By its rejection of the 
common-law test of incitement,^^ it deprived us of the only 
standard of criminal speech there was, since there had never 
been any well-considered discussion of the meaning of " free- 
dom of speech " in the First Amendment. 

As a result of this and similar decisions, the district judges 
ignored entirely the first element of criminal attempt and 
solicitation, that the effort, though unsuccessful, must ap- 
proach dangerously near success. They repudiated the 
test of guilt under the Act laid down by Judge Hand, 
that the words must in themselves urge upon their readers 
or hearers a duty or an interest to resist the law or the 
appeal for volunteers, and substituted the test that the words 
need only have a tendency to cause unrest among soldiers 
or to make recruiting more difficult. The remaining element, 

32 See the review of Masses v. Patten by Learned Hand, J., in U. S. 
V. Nearing, 252 Fed. 223, 227 (1918). Judge Rogers may not have 
realized he was rejecting it (246 Fed. 38), but the test of cominon-law 
incitement has never been applied to the Act by a District Judge since. 



56 FREEDOM OF SPEECH 

intention to cause the bad overt action, they retained. This 
new standard of guilt allowed conviction for any words which 
had an indirect effect to discourage recruiting and the war 
spirit, like the poem about Emma Goldman and the wind, if 
only the intention to discourage existed. Intention thus 
became the crucial test of guilt in any prosecution of opposi- 
tion to the government's war policies, and this requirement 
of intention became a mere form since it could be inferred 
from the existence of the indirect injurious effect. ^^ A 
few judges, notably Amidon of North Dakota, have stemmed 
the tide, but of most Espionage Act decisions what Jefferson 
and Stephen and Schofield said about the prosecutions under 
George III and the Sedition Act of 1798 can be said once 
more, that men have been punished without overt acts, with 
only a presumed intention to cause overt acts, merely for 
the utterance of words which judge and jury thought to 
have a tendency to injure the state. Judge Rogers was 
right in saying ^* that the words of the Espionage Act of 
1917 bear slight resemblance to the Sedition Law of 1798, 
but the judicial construction is much the same, except that 
under the Sedition Law truth was a defense. 

III. The District Court Cases 

The effect of the prosecutions under this Act has, no doubt, been 
beneficial in maintaining law and order. — Report of the Attorney 
General, 1919. 

The revival of the doctrines of bad tendency and con- 
structive intent always puts an end to genuine discussion 
of public matters. It is unnecessary to review the two 
thousand Espionage Act prosecutions in detail, but a few 
general results may be presented here. The courts have 
treated opinions as statements of fact and then con- 

33 Masses Pub. Co. v. Patten, 246 Fed. 24, 39 (1917), Ward, J.; and 
Rogers, J.: "The court does not hesitate to say that, considering the 
natural and reasonable effect of the publication, it was intended will- 
fully to obstruct recruiting." 

3* /did. 29. 



THE WAR WITH GERMANY 67 

demned them as false because they differed from the Presi- 
dent's speech or the resolution of Congress declaring war. 
Their construction of this first clause of the Act will be 
considered in connection with the Supreme Court decisions. 
Under the second and third clauses against causing insub- 
ordination or obstructing recruiting, only a few persons 
have been convicted for actually urging men to evade the 
draft or not to enlist. Almost all the convictions have been 
for expressions of opinion about the merits and conduct of the 
war. It became criminal to advocate heavier taxation instead 
of bond issues, to state that conscription was unconstitutional 
though the Supreme Court had not yet held it valid, to say 
that the sinking of merchant vessels was legal, to urge that 
a referendum should have preceded our declaration of war, to 
say that war was contrary to the teachings of Christ. Men 
have been punished for criticising the Red Cross and the 
Y.M.C.A., while under the Minnesota Espionage Act it has 
been held a crime to discourage women from knitting by the 
remark, " No soldier ever sees these socks." ^^ It was in no 
way necessary that these expressions of opinion should be ad- 
dressed to soldiers or men on the point of enlisting or being 
drafted. Most judges held it enough if the words might con- 
ceivably reach such men. They have made it impossible for 
an opponent of the war to write an article or even a letter in 
a newspaper of general circulation because it will be read in 
some training camp where it might cause insubordination or 
interfere with military success. He cannot address a large 
audience because it is liable to include a few men in uniform ; 
and some judges have held him punishable if it contains men 

35 state V. Freerks, 140 Minn. 349 (1918). References to all cases 
mentioned by name in succeeding paragraphs will be found indexed 
in Appendix II. Among the many other cases illustrating the statements 
of this paragraph may be mentioned the trials of Sandberg, Miller, 
Nagler, Goldsmith, Kaufman, Weist, Kirchner, Shaffer, Albers, KraflFt, 
Boutin, Granzow, Hitchcock, Weinsberg, Denson, Von Bank, White 
(all in Appendix II). A few of these convictions have been reversed, 
but this does not excuse the conduct of the trial courts. See also 
the Supreme Court cases discussed infra. See 32 Harv. L. Rev. 417, 
and other references in Appendix I. The facts of many cases are in 
War-time Prosecutions and Mob Violence. 



68 FREEDOM OF SPEECH 

between eighteen and forty-five, since they may be called into 
the army eventually; some have emphasized the possible 
presence of shipbuilders and munition-makers. All genuine 
discussion among civilians of the justice and wisdom of 
continuing a war thus becomes perilous. 

Judge Van Valkenburgh, in United States v. Rose Pastor 
Stokes, would even make it criminal to argue to women 
against a war, by the words, " I am for the people and the 
government is for the profiteers," because what is said to 
mothers, sisters, and sweethearts may lessen their enthusiasm 
for the war, and " our armies in the field and our navies 
upon the seas can operate and succeed only so far as they 
are supported and maintained by the folks at home." The 
doctrine of indirect causation never had better illustration 
than in his charge. It shows how a very able judge of 
large experience can be swept from his moorings by war 
passion. Furthermore, although Mrs. Stokes was in- 
dicted only for writing a letter, the judge admitted her 
speeches to show her intent, and then denounced the opin- 
ions expressed in those speeches in the strongest language 
to the jury as destructive of the nation's welfare, so that 
she may very well have been convicted for the speeches and 
not for the letter. 

Just as Lord Kenyon, while trying a man who happened 
to sympathize with the French Revolution, went out of his 
way to emphasize its massacres as a consequence of theories 
like the defendant's,^® so Judge Van Valkenburgh denounced 
Ifhe Russian Revolution as " the greatest betrayal of the 
cause of democracy the world has ever seen," and made use 
of Mrs. Stokes' declared sympathy with that Revolution, an 
offense not punishable even under the Espionage Act, to show 
how dangerous it was for her to talk about profiteers. 

Of course, the jury convicted Mrs. Stokes after such a 
charge. They found that the words, " I am for the people, 
and the government is for the profiteers," were a false state- 
ment, known to be false and intended and calculated to inter- 

86 Rex. V. CutheU, 27 How. St. Tr. 642, 674 (1799). 



THE WAR WITH GERMANY 59 

fere with the success of our military and naval forces, that 
they were an attempt to cause insubordination in those 
forces, and that they obstructed recruiting. The judge 
sentenced her to ten years in prison. The Circuit Court 
of Appeals set aside this conviction in March, 1920, but 
it stood all during the war as a stern example that it was 
a heinous crime to discuss profiteering, because of " the pos- 
sible, if not probable effect on our troops." 

A case in the Second Circuit makes it equally perils 
ous to urge a wider exemption for conscientious objectors 
because this tends to encourage more such objectors, a close 
parallel to the English imprisonment of Bertrand Russell." 

Many men have been imprisoned for arguments or pro- 
fanity used in the heat of private altercation, on a railroad 
train, in a hotel lobb}^ or at that battle-ground of disputa- 
tion, a boarding-house table.^* In one case,^^ two strangers 
came to a farmhouse and asked the owner if he could let 
them have some gasoline, saying that they had been stranded 
out in the country. He not only gave them the gasoline, but 
invited them to dinner. An argument arose during the meal, 
and the farmer used scurrilous and presumably unpatriotic 
language in the presence of his guests, two hired men, two 
nieces, and some children. The guests reported his language, 
and he was convicted of a willful attempt to cause disloyalty, 
insubordination, mutiny, and refusal of duty in the military 
and naval forces of the United States. Even unexpressed 
thoughts have been prosecuted through an ingenious method 
of inquisition. A German-American who had not subscribed 
to Liberty bonds was visited in his house by a committee 

sTFraina v. United States, 255 Fed. 28 (C. C. A. 2d, 1918), for 
conspiracy and not under the Espionage Act; Rex v. Bertrand Rus- 
sell, Littell's Living Age, Feb. 15, 1919, p. 385. 

38 For instance, Sandberg, Albers, Goldsmith, Denson. But Judge 
Bourquin refused to let the jury pass on such evidence in the case of 
V. Hall, involving " kitchen gossip and saloon debate." 

39 U. S. V. Harshfield, 260 Fed. 659 (C. C. A., 8th, 1919), revers- 
ing the conviction. In Schoberg v. U. S., 264 Fed. 1, under 1918 Act, 
three elderly German Americans, hobnobbing together in the cobbler's 
shop of one of them and growling about the war, were convicted by 
means of a dictagraph. 



60 FREEDOM OF SPEECH 

who asked his reasons and received a courteous reply that 
he did not wish either side to win the war and could not con- 
scientiously give it his aid. He was thereupon arrested and 
held in confinement until released by a district court.*" 

A few concrete cases of convictions that have been upheld 
will show how the Espionage Act operates to punish expres- 
sions of opinion. 

J. P. Doe, son of the great Chief Justice of New Hamp- 
shire, while living in Colorado because of bad health, mailed 
an " endless chain " letter, to be sent " to friends of imme- 
diate peace," which stated that although the President and 
Secretary of State had said Germany had broken her prom- 
ise to end submarine warfare, Germany had made no such 
promise, but had reserved in the Sussex note complete 
liberty of decision as to the future. Doe's statement was 
a legitimate inference from the note, whatever its bearing on 
the merits of our position — and this he did not discuss. Yet 
he was convicted for it, the alleged intent to obstruct re- 
cruiting being evidenced by passages from a long personal 
letter to his sister. The Court of Appeals said it was a 
fair construction of the circular that Doe intended to con- 
vey the idea that the United States was wrong in relying 
on the alleged promise as a cause of war ; " such an argu- 
ment would have a direct tendency to obstruct the recruit- 
ing and enlistment service." Doe was sentenced to eight- 
een months in prison. 

Robert Goldstein, who had been connected with D. W. 
Griffith in producing " The Birth of a Nation," a well-known 
moving-picture film of the Civil War, planned a similar 
presentation of the Revolution in a film called " The Spirit 
of '76," which contained such scenes as Patrick Henry's 
Speech, the Signing of the Declaration of Independence, 
and Valley Forge. After a year and a half of work the 
picture was finished, just before the outbreak of our war 
with Germany. The film was displayed in Los Angeles to the 

40 United States v. Pape, 253 Fed. 270 (1918). State v. Ludemann, 
172 N. W. (Minn.) 887 (1919), ace. 



THE WAR WITH GERMANY 61 

usual audience, which was not shown to contain either soldiers 
or sailors. The government thereupon indicted Goldstein for 
presenting a play designed and intended to arouse antago- 
nism, hatred and enmity between the American people, par- 
ticularly the armed forces, and the people of Great Britain, 
particularly their armed forces, when Great Britain was " an 
ally '* of the United States, because one scene, the Wyoming 
Massacre, portrayed British soldiers bayoneting women and 
children and carrying away girls. The film was seized, the 
business was thrown from prosperity into bankruptcy with 
a loss of over $100,000, and Goldstein was convicted of at- 
tempting to cause insubordination, etc., in the armed forces 
and sentenced to ten years in the federal penitentiary at 
Steilacoom, Washington. His punishment for depicting the 
origin of this nation has been commuted to three years." 

Rev. Clarence H. Waldron, of Windsor, Vermont, was 
charged with handing to five persons, among whom were a 
woman, two men apparently above military age, and another 
clergyman, a pamphlet to show where he himself stood on the 
war. The judge in his charge quoted the following state- 
ments from the pamphlet : 

Surely, if Christians were forbidden to fight to preserve the 
Person of their Lord and Master, they may not fight to preserve 
themselves, or any city they should happen to dwell in. Christ 
has no kingdom here. His servants must not fight. 

The Christian may not go to " the front " to repel the foe — 
for there he is required to kill men. 

They (referring to the Twelve Apostles) knew the force of 
their Lord's example, and whether to save themselves or to save 
others — never, never use the sword. 

Better a thousand times to die than for a Christian to kill his 
fellow. 

♦1268 Fed. 908; 252 Fed, 946. This conviction has been defended on 
two grounds. (1) That Goldstein inserted the massacre at the public 
performance, though he had omitted it at a preliminary representation be- 
fore officials. If they had no right to censor by previous restraint any 
way (cf. Dailey v. Superior Court, 112 Cal. 94), this fact seems imma- 
terial. In any event it does not merit three years in jail. (2) That he 
had attempted to finance the enterprise by appeal to the anti-British 
sentiments of German-Americans. As this was before we entered the 
war, it should have no bearing whatever even if true. 



62 FREEDOM OF SPEECH 

I do not say that it is wrong for a nation to go to war to 
preserve its interests, but it is wrong to the Christian, absolutely, 
unutterably wrong. 

Under no circumstances can I undertake any service that has 
for its purpose the prosecution of war. 

Mr. Waldron was convicted for causing insubordination 
and obstructing recruiting, and sentenced to fifteen years in 
prison.*^ 

D. H. Wallace, an ex-British soldier, was sentenced to 
twenty years for saying: 

That when a soldier went away he was a hero and that when 
he came back flirting with a hand organ he was a bum, and that 
the asylums will be filled with them; that the soldiers were giving 
their lives for the capitalists, that 40 per cent of the ammunition 
of the allies or their guns was defective because of graft. 

Wallace went insane and died in jail. 

D. T. Blodgett was given the same sentence by the same 
judge, Wade, for circulating a pamphlet urging the voters 
of Iowa not to re-elect the Congressmen who voted for con- 
scription, and reprinting an argument of Thomas E. Wat- 
son, of Georgia, against the constitutionality of the Draft 
Act. This was before its validity had been upheld by the 
Supreme Court. Judge Wade charged that the govern- 
ment had passed the Espionage Act, " realizing that it must 
protect the feeling and spirit of the American people agailist 
the work of those who defy authority; it was not intended 
for ninety-five per cent of the American people, but neces- 
sary for the few who will not heed the judgment of the ninety- 
five per cent ; who assume to know more than all the others 
put together. It is not a harsh Act." He recalled the 
draft riots of the Civil War, and suggested that Blodgett 
had felt that a little mutiny might aid his political cause. 
" Just look at this that he wants drafted men to buy : " 

In Washington City it is a carnival, a wild extravagance; an 
orgy of prodigal waste ; a Bacchanalian revel of men who act as 

** He was pardoned after a year in prison. 



THE WAR WITH GERMANY 63 

though they were drunk on power and had lost every sense of 
shame, duty and responsibility. The huge appropriations made 
will accrue to the benefit of the classes. Great is the gathering 
of the vultures at the National Capital, for never before has there 
been such a carcase inviting them to the feast. Three thousand 
millions of dollars in one appropriation, and the vultures fiercely 
shrieking for more. 

" There is no better way," said the judge, " of unsettling 
the confidence of the people and stirring their souls against 
the war than to paint it as a war of capitalism, organized 
by capitalists and for capitalists, and painting the officers 
of the government as representing willing tools of Wall 
Street. There is no better way." 

Undoubtedly in all these cases, intention to cause insub- 
ordination or obstruct recruiting was made a test of guilt. 
It may seem to many persons that, so long as a speaker talks 
with such a purpose it makes no difference whether he sat- 
isfies Judge Hand's objective standard by saying, " Don't 
enlist, don't register, shoot over the enemies' heads," or 
whether he confines himself to statements about the horrors 
of a modem battlefield and opinions about the legality of the 
German entry into Belgium. Very likely the moral quality 
of the two methods is the same; the tendency to prevent 
enlistment may be the same. But the reason that makes 
it, if not unconstitutional, at least very unwise, to punish 
the second type of utterance, the expression of fact or opin- 
ion, is that it is only by absence of penalties for such utter- 
ances that a self-goveming'people can learn and disseminate 
the truth on public affairs. The first type of utterance, on 
the other hand, has practically no value for such a purpose. 
When the public is interested, bad motives ought not to de- 
prive it of the benefit of what is said. Opposition to govern- 
mental action through discussion, like opposition to private 
action through law-suits, is the alternative to the use of 
force. If the law should require litigants to have good mo- 
tives, it might as well shut up the courts. In the same way, 
truth is truth, and just as valuable to the public, whether 



64 FREEDOM OF SPEECH 

it comes from the most enthusiastic supporter of the war 
or from a pro-German, and in order to get the truth, con- 
flicting views must be allowed. What a pacifist says about 
the extravagance of Congress or bad camp conditions dur- 
ing the influenza epidemic or the desire of France for the 
left bank of the Rhine, may be worth hearing and acting 
on, and it will be just as important, although he does it with 
the hope of hindering the war. If disclosures like those made 
by Admiral Sims are true, they would have been very valuable 
if made by some private citizen during the war, and no less so 
if printed in Berger's Milwaukee Leader. So long as the 
speaker creates no great danger of losing the war, so long as 
the discouraging effects of his utterances can be checked 
by the draft organization, the four-minute men, and the 
general loyalty, it is wiser to let him talk for the sake of 
possible good. 

The last case reviewed, Judge Wade's trial of Blodgett, 
brings out my point clearly. Every one will admit that 
Congress may properly consider ending a war. If so, the 
men to favor this must be elected, as many of them were in 
1864, and the election will be a poor expression of the popu- 
lar will unless it is preceded by discussion of the merits of 
beginning and continuing the war. Once more, that discus- 
sion will have little value for the formation of opinion if the 
presence of a man within draft age brings it within the scope 
of the Espionage Act, and if those who oppose the war vig- 
orously are cowed into silence by twenty-year sentences. 
It must never be forgotten that the Espionage Act 
applies to all future wars, and the next one may 
be as questionable as those of 1812 and 1846. The same 
considerations apply to the right of petitioning Congress 
and high officials, which is expressly secured by the First 
Amendment. Twenty-seven South Dakota farmers were op- 
posed to the draft and believed that an unduly high quota 
was exacted from their county. They petitioned various 
state officers, asking a new arrangement, a referendum on 
the war, payment of war expenses from taxation and repu- 



THE WAR WITH GERMANY 66 

diation of war debts. As an alternative they threatened de- 
feat to the officers, their party, and the nation. Foolish as 
this petition was, it stated a grievance which deserved in- 
quiry. Instead, the twenty-seven were sentenced to more 
than a year in prison. This conviction. Attorney General 
Gregory declares to have been " one of the greatest deter- 
rents against the spread of hostile propaganda, and par- 
ticularly that class of propaganda which advanced and 
played upon the theme that this was a capitalists' war." 
Yet after it had served this suppressive purpose, and reached 
the Supreme Court, he confessed that the conviction was er- 
roneous.*^ 

In the same way, punishment of alleged evil tendency 
coupled with unlawful intention limits the general influence 
of the press on legislation and administrative policies, which 
is a recognized part of American democracy. Undoubtedly, 
the statement that $640,000,000 had been spent on aeroplanes 
without a single machine in France had as great a tendency 
to weaken the national morale as any event of the war. The 
District Court test makes it criminal for an editor to mention 
that fact with the purpose of turning public opinion against 
the war. It is true that no prosecutions were brought on 
that account, but are we any worse off without them? Was 
it not an advantage to have the fact as widely known as 
possible so as to produce a complete alteration of govern- 
ment methods? And so with respect to the territorial and 
commercial aims of our associates in the war, which have 
caused us so much concern since the armistice. In short, the 
truth may be told with a bad purpose, but it is none the less 
truth; and the most dangerous falsehoods (like the report of 
the premature armistice, which probably cost a very great 
loss of production of munitions), may be committed from 
motives of the highest patriotism. Even on the assump- 
tion, which I shall soon show to be questionable, that all the 

■*3Baltzer case; Report of Attorney General, 1918, 48. Jared Peck 
was indicted under the Sedition Act of 1798 for circulating a petition to 
Congress for the repeal of the Act. — Beveridge's Marshall, III, 42 note. 



66 FREEDOM OF SPEECH 

persons convicted ,under the Espionage Act intended to 
hinder the war, intention is a very poor test of the truth and 
value of reports and opinions, and in effect results in the 
punishment of men, not for any actual or probable injury, 
but for their state of mind. 



IV. The Human Machinery of the Espionage Ads 

If there be a scintilla of real evidence that seditious rags are 
infecting the Native Army, nobody would refuse suppression. 
Only you won't forget that in moments of excitement, such as 
this may become, people are uncommonly liable to confuse sus- 
picions and possibilities with certainty and reality. — Morley, 
Recollections. Letter to the Viceroy of India. 

A less obvious but not less vital objection to the District 
Court test is its unfitness for practical administration. Even 
if we decide that the man who makes discouraging utter- 
ances in war time with a bad intention deserves punishment, 
we ought not to lay down a rule of law to punish him, unless 
we can be sure that in its actual operation it will catch him 
and let the man with good intention go. A rule is not de- 
sirable simply because it reads well. It must also work well. 
The law is not self-operating and it cannot pick out the 
bad man automatically. It must discover him through hu- 
man machinery, and the defects of this machinery are the 
very greatest reason for preserving an immunity of speech 
from prosecution far wider than the District Court test. 

" We have to consider," said Macaulay of a theory of 
criminal law very similar to this test,** " not merely the good- 
ness of the end, but also the fitness of the means. . . . There 
is surely no contradiction in saying that a certain section 
of the community may be quite competent to protect the 
persons and property of the rest, yet quite unfit to direct 
our opinions." 

44 Essay on Southey's Colloquies. The whole is worth re-reading 
to-day, especially the warning against a Paul Pry government, declaring 
what we shall think and what we shall drink. 



THE WAR WITH GERMANY 67 

Jefferson pointed out in the Virginia Toleration Statute, 
quoted in the first chapter/^ the unfitness of this machinery 
for discriminating between utterances of good tendency and 
utterances of bad tendency. Its unsuitability to separate 
good from bad intention is just as great."*^ The trouble with 
the District Court test is, that in making intention the crucial 
fact in criminality, it exposes all who discuss heated ques- 
tions to an inquiry before a jury as to their purposes. That 
inquiry necessarily is of the widest scope and if the general 
attitude of the person is singular and intransigeant, there 
is an insufficient protection. You cannot tell a man's in- 
tention by looking at his forehead, you must look through it 
to the inside of his head, and no judge and jury are capable 
of looking through the skull of a man who has done nothing 
but talk, to see what goes on inside. It is true that intention 
is material in other crimes, such as murder, but in dealing 
with an overt criminal act the intention is evidenced by many 
other acts, which are a kind of fact with which the jurymen 
are familiar and capable of dealing. On the other hand, 
the intention in making utterances is evidenced by inferences 
drawn from the supposed bad tendency of the words them- 
selves, and by other utterances, which will also be viewed 
under the obnoxious test of bad tendency. For instance, 
in the Stokes and Doe cases the judge admitted speeches 
or letters not included in the indictment. In many cases 
opinions expressed before the United States entered the war 
have also been admitted, opinions which the defendants then 
shared with many persons who afterwards supported the war. 
No matter how carefully the judge instructs the jury to dis- 
regard such prior language except as evidence of intention, 

45 See page 31, supra. 

46 " It seems to me perfectly clearly established, that no official yet 
born on this earth is wise enough or generous enough to separate good 
ideas from bad ideas, good beliefs from bad beliefs, and that the utmost 
that anybody can ask of a government, is that if it is eflBcient it should 
detect and run down criminal acts; that beyond reaching words which 
are the direct and immediate incitement to criminal acts, no govern- 
ment dare go." — Walter Lippmann, Bull. League of Free Nations Assn., 
Mar., 1920. 



68 FREEDOM OF SPEECH 

there can be no doubt that it is human nature to lump to- 
gether all the utterances, inside and outside the indict- 
ment, and decide whether or not the defendant deserves 
punishment for everything he said. The Abrams case in 
the next chapter will bring this out very clearly. 

The parallelism with the French revolutionary trials is 
often curiously close. Just as Lord Ellenborough could 
see no motive for Leigh Hunt's attack on flogging in the 
army except to cause a mutiny, so the District Court judges 
have often been ready to infer a similar criminal intent from 
talk of profiteering or Wall Street. It is easy for the sup- 
porters of a war to class all its opponents as traitors, forget- 
ting that some of them argue against it merely because they 
cannot bear to see what seems to them a needless conflict, 
cripple or destroy the lives of thousands of their fellow- 
countrymen. A lawyer who has defended many Espionage 
Act cases tells me that there was much speculation 
among his clients as to whether they actually pos- 
sessed the requisite criminal intent. A few of them admitted 
to him that they had it, and there is not much question 
that some of the utterances which were prosecuted were 
made with the purpose of obstructing recruiting or the 
draft, although the danger of their doing so was usually 
non-existent. But it is impossible to read over the various 
cases without coming to the conclusion that most of the 
defendants had no real intention to cause trouble, but were 
only engaged in heated altercations or expounding economic 
doctrines. 

A saw is a very good thing, but not to shave with, and 
a judge and jury are an excellent instrument to pass on 
overt acts. They are also well-fitted to decide the effect of 
words upon the reputation of an individual, when the harm- 
fulness of the language can be easily tested by common- 
sense standards, and its counterbalancing benefit to the pub- 
lic, if any, is indicated by well-established principles of law 
as to privilege and fair comment. But they are not trained 
and they are not able to apply such vague and misleading 



THE WAR WITH GERMANY 69 

tests of the criminality of utterances as bad tendency and 
presumptive intent. 

It is on this account that I have spent so much time in 
emphasizing the difference between Judge Hand's test and 
the District Court test, in what may seem to many of my 
readers a mere interest in technicahties, far removed from 
the broad principles of freedom of speech. They forget 
that the technical rules of the common law are often the 
greatest safeguards of freedom. As Sir Henry Maine said, 
" Substantive law has at first the look of being gradually 
secreted in the interstices of procedure." *^ It is only neces- 
sary to recall the tremendous importance to human liberty 
of such procedural regulations as the Habeas Corpus Act, 
Fox's Libel Act, and the rule that no man shall be com- 
pelled to give evidence against himself. This is the great 
value of Judge Hand's test, which was the only sort of rule 
about wan-time utterances which should have been permitted. 
If it was not the correct interpretation of the language of 
the Espionage Act, then an act with different language ought 
to have been passed. Even if not the only constitutional 
construction, it was the only workable construction. His 
rule gave the jury something definite to consider, the actual 
nature of the words and the danger of interference with 
the armed forces. The District Court test left them noth- 
ing but speculation upon the remote political and economic 
effect of words and the probable condition of mind of a per- 
son whose ideas were entirely different from their own. 

In peaceable and quiet times, our legal rights are in little danger 
of being overborne ; but when the wave of power lashes itself into 
violence and rage, and goes surging up against the barriers which 
were made to confine it, then we need the whole strength of an 
unbroken Constitution to save us from destruction.*^ 

Judge Hand's test would have been a sea-wall against 
these surging waves, but the District Court test was nothing 
but a mud-bank which was rapidly swept away. 

47 Early Law and Custom, 389. 

48 Jeremiah Black, arguing in Ex parte Milligan, 4 Wall. 2,75 (1866). 



70 FREEDOM OF SPEECH 

No one reading the simple language of the Espionage 
Act of 1917 could have anticipated that it would be rapidly 
turned into a law under which opinions hostile to the war 
. had practically no protection. Such a result was made pos- 
I sible only by the District Court test and by the tremendous 
wave of popular feeling against pacifists and pro-Germans 
.during the war. This feeling was largely due to the hys- 
'f;erical fear of spies and other German propaganda. All 
^f us on looking back to 1917 and 1918 are now sure that 
the emotions of ourselves and every one else were far from 
normal. I remember hearing one woman in a railroad train 
say to another, " Yes, my brother was going to France with 
the Y.M.C.A., but the sailing of his boat has been put 
off and put off. I don't like to say that it's German propa- 
ganda, but it certainly looks like it." 

Mr. John Lord O'Brian, Assistant to the Attorney Gen- 
eral in the prosecution of the most important Espionage 
Act cases, gives a vivid account of the false stories of ene- 
my activities within the United States, put forth through 
the medium of press dispatches, pamphlets of patriotic so- 

jcieties, and occasionally speeches on the floor of Congress : ^° 
I 

A phantom ship sailed into our harbors with gold from the 

Bolsheviki with which to corrupt the country; another phantom 

ship was found carrying ammunition from one of our harbors to 

Germany; submarine captains landed on our coasts, went to the 

/ theater and spread influenza germs; a new species of pigeon, 

/ thought to be German, was shot in Michigan; mysterious aero- 

I planes floated over Kansas at night, etc. Then there were the 

alleged spies themselves, — Spoermann, alleged intimate of Bern- 

i storff, landed on our coasts by the U-53, administrator of large 

\ funds, caught spying in our camps, who turned out to be a 

\ plumber from Baltimore. Several other alleged spies caught on 

\ the beaches signaling to submarines were subsequently released 

because they were, in the several cases, honest men, one of whom 

had been changing an incandescent light bulb in his hotel room, 

49 62 N. Y. Bar Assn. Rep. 281 (1919). Judge G. W. Anderson, who 
was U. S. District Attorney in Massachusetts in 1917, says, " More than 
ninety-nine per cent of the advertised and reported pro-German plots 
never existed."— 21 New Republic 251. 



THE WAR WITH GERMANY 71 

another of whom was trying to attract the attention of a passerby 
on the beach, etc. There was no community in the country so 
small that it did not produce a complaint because of failure to 
intern or execute at least one alleged German spy. These in- 
stances are cited, not to make light of the danger of hostile ac- 
tivities, nor to imply that incessant vigilance was not necessary 
in watching the German activities, but to show how impossible it 
was to check that kind of war hysteria and war excitement which 
found expression in impatience with the civil courts and the oft- 
recurring and false statement that this government showed undue 
leniency toward enemies within our gates. 

Yet not one case under this part of the statute shows 
the slightest evidence that the utterances were actuated by 
German money or German plans. Mr. O'Brian says it is 
doubtful if even the I.W.W. had any degree of German sup- 
port. Besides this fear of spies another influence which made 
fair trials under the Espionage Act very difficult was the 
passion for becoming spies. Not only did the American Pro- 
tective League act as auxiliary to the Department of Justice, 
but as the same authority says : ^° 

Throughout the country a number of large organizations and 
societies were created for the purpose of suppressing sedition. All 
of these were the outgrowth of good motives and manned by a 
high type of citizens. The membership of these associations ran 
into the hundreds of thousands. One of them carried full page 
advertisements in leading papers from the Atlantic to the Pacific, 
offering in substance to make every man a spy chaser on the pay- 
ment of a dollar membership fee. These associations did much 
good in awakening the public to the danger of insidious propa- 
ganda, but no other one cause contributed so much to the op- 
pression of innocent men as the systematic and indiscriminate 
agitation against what was claimed to be an all-pervasive system of 
German espionage. 

It is obvious that the presence of members of these socie- 
ties on juries made a just determination of such vague facts 
as the bad tendency of utterances and the intention of the 
defendant impossible. Once more we have a curious parallel- 

60 O'Brian, 279, 292, 297. On the I.W.W., 299. 



72 FREEDOM OF SPEECH 

ism with the experiences of England during the French Revo- 
lution:" 

Another agency was evoked by the spirit of the times, dangerous 
to the liberty of the press, and to the security of domestic life. 
Voluntary societies were established in London and throughout 
the country, for the purpose of aiding the executive Government 
in the discovery and punishment of seditious writings or language. 
. . . These societies, supported by large subscriptions, were busy 
in collecting evidence of seditious designs, often consisting of 
anonymous letters, often of the report of informers, liberally re- 
warded for their activity. They became, as it were, public prose- 
cutors, supplying the Government with proof of supposed offenses, 
and quickening its zeal in the prosecution of offenders. Every 
unguarded word at the club, the market-place or the tavern, was 
reported to these credulous alarmists and noted as evidence of 
disaffection. 

Such associations were repugnant to the policy of our laws, 
by which the Crown is charged with the office of bringing offenders 
to justice, while the people, represented by juries, are to judge, 
without favor or prejudice, of their guilt or innocence. But here 
the people were invited to make common cause with the Crown 
against offenders, to collect the evidence, and prejudge the guilt. 
How then could members of these societies assist in the pure 
administration of justice, as jurymen and justices of the peace? 
In the country especially was justice liable to be warped. 

Attorney General Gregory corroborates Mr. O'Brian's 

statement : ^^ 

The department has also been hampered by the circulation of 
unfounded reports, running into the hundreds, of supposed un- 
punished alien enemy activities in the way of fires alleged to have 
been caused by enemy agents, alleged uses of poison by enemy 
agents, alleged uses of ground glass, alleged damage to Red Cross 
supplies, etc. In view of the necessity for constant vigilance on 
the part of the public, it has not always seemed advisable to this 
department to enter into controversies as to the truth of these 
irresponsible reports. 

It was with the country in the atmosphere above described 
that the laws affecting free speech received the severest test 

61 May, Constitutional History, II, 36. 52 Report, 1918, 28. 



THE WAR WITH GERMANY 73 

thus far placed upon them in our history.^^ It is obvious 
that a country full of would-be spies chasing imaginary 
spies and finding only pro-Germans and pacifists is a very 
unfit place for the decision of those psychological questions, 
which, as Wharton pointed out,^* inevitably arise from the 
prosecution of utterances. It may be helpful to examine 
briefly the effect of this atmosphere upon the three main 
parts of the human machinery through which the Espionage 
Act necessarily operated, namely, the prosecuting officials, 
the juries, and the trial judges. 

The Assistants to the Attorney General in charge of the 
administration of the Espionage Act were John Lord O'Brian 
of Buffalo, so frequently quoted in these pages, and Alfred 
Bettman of Cincinnati. Although these men enforced the 
statute in accordance with the District Court test, which 
in my opinion made the maintenance of a real freedom of 
speech impracticable, nevertheless they were firm believers in 
that principle and singularly free from the effects of war 
emotion. In particular, great praise must be given to their 
thorough investigation of hundreds of convictions, as a re- 
sult of which the sentences imposed by the judges were in 
many instances commuted by the President to a small frac- 
tion of their original length.^^ Unfortunately, it was very 
hard for these officials in Washington to impress their ideas 
of fairness and open discussion upon some of their subordi- 
nates and upon the public, and consequently to keep control 
of prosecutions throughout the country. Mr. O'Brian sums 
up this local situation: 

It has been quite unnecessary to urge upon the United States 
Attorneys the importance of prosecuting vigorously, and there has 
been little difficulty in securing convictions from juries. On the 
contrary, it has been necessary at all times to exercise caution 
in order to secure to defendants accused of disloyalty the safe- 
guard of fair and impartial trials. In addition to the causes 
already recited there were the patriotic agitations continually 

63 O'Brian, 299. 

B4 See page 62, supra, 

65 Report of the Atty. Gen., 1919, Exhibit 21. 



74. FREEDOM OF SPEECH 

being carried on by the Liberty Loan speakers, four-minute men 
and others, all of which worked the whole country up to a pitch 
of intense patriotism, resulting in instinctive aversion toward any- 
one even under suspicion for disloyalty. 

The situation became particularly serious after the pas- 
sage of the Espionage Act of 1918. Despite the very wide 
scope given the Act of 1917 by the judges, it did after all 
require some connection between the expressions of opinion 
and the raising of our armed forces and did not punish dis- 
loyal utterances as such. Before the Amendment, isolated 
disloyal utterances had been treated in many parts of the 
country as incitement to disorder and had been summarily 
disposed of under a rather generous interpretation of state 
or local laws providing punishment for disorderly conduct. 
The Act of 1918 threw upon the law machinery of the Federal 
Government a great burden which it was ill-adapted to as- 
sume. It was almost impossible for the law officials to keep 
abreast of the complaints, and the result everywhere tended to 
encourage impatience with the action of civil tribunals. 

The general publicity given the statute through the newspapers 
and, in many cases, through employers, who circularized their 
employees with copies of the act (calling attention to the dangers 
of strike activities), fanned animosities into flame, vastly increas- 
ing the amount of suspicion and complaints throughout the coun- 
try. This, in turn, resulted in a large increase in the amount of 
prosecutions, backed up by strong local patriotic sentiment. Up 
to the time that this statute went into practical operation the 
United States Attorneys throughout the country, except in genuine 
cases of treason, had each acted as the supreme law official of 
his district, exercising on his own account full discretion in all 
matters as to prosecution.^^ 

Under these circumstances, on May 23, 1918, the Attorney 
General issued to all United States attorneys a circular about 
the amended act. It stated that the prompt and aggressive 
enforcement of the act was of the highest importance, but it 

56 O'Brian, 304, 305, 309. See the facts of some of the local cases in 
War-time Prosecutions, 27 flf., listing 126 convictions under local laws 
(a few under state sedition statutes). 



THE WAR WITH GERMANY 75 

was also of great importance that it should be administered 
with discretion and should not be permitted to become the 
medium whereby efforts were made to suppress honest, legiti- 
mate criticism of the administration or discussion of govern- 
ment policies, or for personal feuds or persecution.^^ It is 
obvious that this circular simply transferred the strain from 
the judge and jury to another portion of the human machin- 
ery, the district attorney, who is a government official, and 
naturally less impartial. Opinions may differ as to the wis- 
dom of enacting a very broad criminal statute which enables 
the government to deal with persons who are really dan- 
gerous and ignore others who are actually within its terms. 
Such irregularity of application is certainly novel in our 
system of criminal law. It has been well said that this cir- 
cular " converts every United States attorney into an angel 
of life and death clothed with the power to walk up and 
down his district, saying, ' This one will I spare, and that 
one will I smite.' If the law leaves it to the district attorney 
to determine when an act shall be prosecuted as a crime and 
when it shall not be, how is a citizen to know when he is 
exercising his constitutional right, and when he is commit- 
ting a crime? Of course such conduct in administering 
criminal law, punishable by imprisonment for twenty years, 
simply converts government into a government of men and 
not of law." The Department of Justice eventually real- 
ized this, wide divergencies appearing in the theories enter- 
tained by the various prosecuting attorneys, so that the 
Attorney General about a month before the end of the war 
issued a circular directing district attorneys to send no more 
cases to grand juries under the Espionage Act of 1918, with- 
out first submitting a statement of facts to the Attorney 
General and receiving by wire his opinion as to whether 
or not the facts constituted an offense under the Act.^^ 
" This circular," says Mr. O'Brian, " is suggestive of the 
immense pressure brought to bear throughout the war upon 
the Department of Justice in all parts of the country for 
57 Rep. Atty. Gen., 1918, 674. 58 Ibid.; O'Brian, 306. 



76 FREEDOM OF SPEECH 

indiscriminate prosecution demanded in behalf of a policy 
of wholesale repression and restraint of public opinion." 
Doubtless this circular made it possible for the Attorney 
General to weed out mere " clamor " cases, but it came too 
late in the war to have any practical effect. Until that 
time all persons who were opposed to the war were practi- 
cally at the mercy of the local district attorneys, and under 
the District Court test of the 1917 Act or the express lan- 
guage of the 1918 Act prosecution almost invariably re- 
sulted in conviction. 

For the human machinery broke down at a second point — 
the jury. It is sometimes suggested that a jury trial gives 
a sufficient protection for freedom of speech, and that public 
sentiment will inevitably reflect itself in verdicts of acquittal 
if the prosecution seems unjust.^^ It is undoubtedly true 
that in England freedom of discussion is, as Dicey says, 
" little else than the right to write or say anything which 
a jury, consisting of twelve shopkeepers, think it expedient 
should be said or written." In my first chapter, however, 
I have endeavored to show that this protection is entirely 
inadequate and that the constitutional provision must mean 
much more. It is only in times of popular panic and indig- 
nation that freedom of speech becomes important as an insti- 
tution, and it is precisely in those times that the protection 
of the jury proves illusory. As the Assistant to the Attor- 
ney General admits, " There has been little difficulty in secur- 
ing convictions from juries." 

Judge Amidon, who has had much experience in Espionage 
Act cases, says: 

Only those who have administered the Espionage Act can under- 
stand the danger of such legislation. When crimes are defined 
by such generic terms, instead of by specific acts, the jury becomes 

59 E.g., W. R. Vance in 2 Minn. L. Rev. 260; 33 Harv. L. Bev. 448. In 
England freedom of speech is necessarily protected only by jury trial 
plus the common law rules of criminal attempt and solicitation, unlaw- 
ful meetings, etc. See Dicey, Law of the Constitution, chapters VI and 
VII. Without the guidance of these rules the jury would be far less 
valuable. Hence the merit of Judge Hand's test. 



THE WAR WITH GERMANY 77 

the sole judge, whether men shall or shall not be punished. Most 
of the jurymen have sons in the war. They are all under the 
power of the passions which war engenders. For the first six 
months after June 15, 1917, I tried war cases before jurymen 
who were candid, sober, intelligent business men, whom I had 
known for thirty years, and who under ordinary circumstances 
would have had the highest respect for my declarations of law, 
but during that period they looked back into my eyes with the 
savagery of wild animals, saying by their manner, " Away with 
this twiddling, let us get at him." Men believed during that 
period that the only verdict in a war case, which could show 
loyalty, was a verdict of guilty. 

There are strong indications of other influences which 
accentuated the effect of the general war emotion, of cir- 
cumstances which resemble the situation in England during 
the French Revolution, when the juries were chosen largely 
from men much opposed to the prisoners.^" Mr. O'Brian 
tells ^^ how the administration of the Act was affected by 
economic conflicts growing out of the activities of the Non- 
partisan League and the I.W.W. Although the Attorney 
General insisted upon the doctrine that guilt was per- 
sonal and refused to proscribe any group as such, the effect 
on juries in federal and state prosecutions was probably 
serious. For instance, in the trial of the president of the 
Non-Partisan League, under the Minnesota Espionage Act, 
the jury was chosen from the regular term panel of thirty- 
two men, which in turn was selected by lot from a total panel 
of one hundred and forty-four, picked from among the voters 
by the County Commissioner. Three " triers " also aided, 
who are charged with hostility to the League. Although the 
farmers of Jackson County were sharply divided into mem- 
bers of the Non-Partisan League and bitter opponents with 
practically no neutrals, and the League candidate at the 
last election had fallen only thirty-one short of a majority, 
the panel of one hundred and forty-four contained not a sin- 
gle member of the League, but consisted of men from sections 
of the county which League organizers and speakers were 

60 May, II, 36, 87. «i O'Brian, 295. 



78 FREEDOM OF SPEECH 

barred from visiting. The defense had only four peremptory 
challenges. The jury was not segregated, but was subjected 
to the heat of popular discussion during the trial. ®^ 

This was not a federal case, but similar problems are 
raised by the method of selecting juries in the federal courts. 
As long ago as the Sedition trials of 1798 the method of 
securing indictments and convictions met with public con- 
demnation because of the men from whom and by whom the 
jury were chosen. Mr. Beveridge says,®^ " In many states 
the United States Marshals selected what persons they 
pleased as members of the grand juries and trial juries. 
These officers of the National courts were, without exception, 
Federalists; in many cases, Federalist politicians. When 
making up juries they selected only persons of the same man- 
ner of thinking as that of the marshals and judges them- 
selves. So it was that the juries were nothing more than 
machines that registered the will, opinion, or even inclina- 
tion of the National judges and the United States District 
Attorneys. In short, in these prosecutions, trial by jury in 
any real sense was not to be had." 

It would certainly be improper without a very elaborate 
investigation to assert that such conditions exist in federal 
juries at the present time. The method of selection varies 
so much that generalization is impossible. There can be no 
doubt, however, that in some districts a wide power of 
selection, otherwise than by lot, is exercised by the offi- 
cials. Federal juries in civil cases are considered by 
members of the bar to be superior in quality to 
state juries, and this is accounted for by the practice of 
the officials to go through the lists carefully and exclude 
persons who are considered undesirable. While this method 
may not have been exercised with any desire to prejudice the 

62 See Bibliography on Townley trial. 

63 Beveridge's Marshall, III, 42. F. M. Anderson, " The Enforcement 
of the Alien and Sedition Laws," Rep. Am. Hist. Assn. (1912), 125, 
says that the grand juries were composed preponderantly, if not exclu- 
sively, of Federalists; that the Callander trial jury was drawn in a 
manner that went far toward justifying the charge of packing, and that 
other juries could scarcely be called impartial. 



THE WAR WITH GERMANY 79 

jury in Espionage Act cases, the jury might naturally be 
limited to men of means who were not likely to understand 
at all the position of a person opposed to the war for eco- 
nomic reasons. On the other hand, federal jurors in New 
York City are said by a member of the Department of Jus- 
tice to be inferior to those in the state courts. The govern- 
ment had more difficulty there in securing convictions in war 
cases than almost anywhere else, and this was attributed by 
some of the government counsel to the presence on the jury 
list of many persons with radical tendencies of thought. 
Without framing any conclusions myself on this extremely 
delicate matter, I shall present certain statements made on 
behalf of the defendants in various cases as material for 
criticism and subsequent investigation by other persons in- 
terested in this field. 

Max Eastman in his account of the Debs case speaks 
from the point of view, obviously partisan but worth atten- 
tion, of one who has himself been on trial under the Espionage 
Act : '* 

As to the jury . . . they were about seventy-two years old, 
worthy fifty to sixty thousand dollars, retired from business, from 
pleasure, and from responsibility for all troubles arising outside 
of their own family. An investigator for the defense computed 
the average age of the entire venire of 100 men; it was seventy 
years. Their average wealth was over $50,000. In the jury 
finally chosen every man was a retired farmer or a retired mer- 
chant, but one, who was a contractor still active. They were 
none of them native to leisure, however, but men whose faces were 
bitterly worn and wearied out of all sympathy with a struggle 
they had individually surmounted. 

Berger's counsel made the following statement to the Com- 
mittee of the House of Representatives : ^^ 

64 "The Trial of Eugene Debs," 1 Liberator, No. 9 (Nov., 1918), 9. 

The charge of Mayer, J., in United States v. Phillips, was so favor- 
able to the defendant that, I am informed by an eyewitness, an acquit- 
tal was generally expected in the court-room, but the defendants were 
convicted. 

65 Victor L. Berger: Hearings before the Special Committee, I, 636. 



80 FREEDOM OF SPEECH 

On the selection and composition of the jury, I want to say 
that out of a panel that was examined of fully 50 there was only 
one laboring man who appeared, out of a 90 per cent, population 
of that judicial district, on the panel, and he was promptly treated 
as though he were a spy in camp. The jury was made up of a 
number of insurance brokers of the city of Chicago, of a number 
of very wealthy farmers, retired farmers, I think five, all men of 
much acreage and wealth in Illinois, and two bankers. Racially, it 
was utterly unrepresentative. I mean the whole panel was utterly 
unrepresentative of the racial, national, or industrial composition 
of the masses of the people in that district. . . . It is the mar- 
shal's personal selection. It is the most extraordinary thing 
and the judicial system of our country ought to be corrected, 
because he is the appointee of the civil administration. 

Whether or not these accusations are just, they certainly 
present a problem in the trial of persons of radical inclina- 
tions, which must be solved in the future with considerable 
thought. The solution should not only give justice, but be so 
plain as to satisfy all classes, in so far as that is possible, 
that they are getting justice. 

The third point at which the human machinery breaks 
down in the enforcement of a sedition law is the trial judges. 
Some of the English charges against agitators have already 
been mentioned. It is well known that one of the worst fea- 
tures of the Sedition Act of 1798 was its administration by 
the Federalist judges, which afterwards caused a determined 
assault upon the National Judiciary. In their charges to 
grand juries, they lectured and preached on religion, on 
morality, on partisan politics. At the trials, freedom of 
speech was ignored, no distinction was made between fact 
and opinion, and prosecutions for " wholly justifiable politi- 
cal criticisms — some of them trivial and even amusing " — 
were allowed to go to the jury. Although the deportment 
of the judges, with the exception of Chase, was substantially 
correct and the charges were usually right in what they 
said, convictions followed because of what was omitted or 

See John Wurts, " The Jury System under Changing Social Conditions," 
47 Am. L. Rev. 67; Mamaux v. U. S., 264 Fed. 816. 



THE WAR WITH GERMANY 81 

because the jury should have been prevented by a direction 
of acquittal from passing on the cases at all.®® 

Some Espionage Act charges which merit a similar criti- 
cism have already been mentioned, and make it plain that 
in contrast to the Civil War judges who stood rock-ribbed 
for legality/^ a few men on the present United States bench 
felt it to be their duty to deliver stump speeches to the jury 
as if they were soliciting subscriptions to a Liberty Loan. 
One more instance may be given. 

Judge Aldrich in a New Hampshire case charged : ®® 

These are not times for fooling. The times are serious. No- 
body knows what is going to happen to our institutions within 
the next year, or the next month. Out West they are hanging 
men for saying such things as this man is accused of saying. 
They are feeling outraged by such expressions to such extent that 
they are taking the law into their own hands. Now, that is a 
very bad thing to do. We do not want that in New Hampshire, 
but we do want a courageous enforcement of the law. 

Besides this attitude toward opposition to the war in gen- 
eral, some judges have expressed an attitude on economic 
questions which seriously affects not only the enforcement 
of Espionage Act cases but of the Deportation law and of 
a federal peace-time Sedition law, should one be enacted. A 
considerable portion of hostility to the declaration of war and 
conscription was due to the belief of radicals that it repre- 
sented a sacrifice of working-class lives for the benefit of the 
wealthy. This belief was expressed by many members of 
the Non-Partisan League, the Socialist Party, and the In- 
dustrial Workers of the World. Sympathy with the Rus- 

66 Beveridge's Marshall, III, 30 note; II, 421; and III, 29-49 passim; 
F. M. Anderson, op. cit., 126. 

^T E.g., Taney's decision in Ex parte Merryman, Taney, 246 (1861); 
and the release of the Copperhead Milligan, 4 Wall. 2 (1866). 

68 U. S. V. Taubert, Bull. Dept. Just., No. 108. He was sentenced 
to three years for obstructing bond sales by saying, " This was a 
Morgan war and not a war of the people." There is nothing about 
bonds in the 1917 Act, but Judge Aldrich held it covered them because 
an army could not be raised without them and " the Government must 
not be embarrassed in those respects by unreasonable opposition." 



82 FREEDOM OF SPEECH 

sian Revolution was also a complicating factor. It was 
clearly the duty of the judges to keep their minds free from 
economic prejudices and to warn the jury that just because 
a defendant held unpopular radical views this in no way af- 
fected his guilt for interference with the war. Of course 
judges, like other men, are entitled to definite opinions on 
vital controversies of the day, and most of them will nat- 
urally favor only gradual changes in the present order, but 
the increasingly frequent part which radicalism is playing 
in legal proceedings of various kinds, and particularly in 
sedition prosecutions during and since the war, makes it es- 
sential that the judge hearing such cases shall have a schol- 
arly and dispassionate attitude and an ability to discriminate 
between different schools of revolutionary thought. The 
warning of Justice Holmes deserves reprinting : ^^ 

When twenty years ago a vague terror went over the earth and 
the word socialism began to he heard, I thought and still think 
that fear was translated into doctrines that had no proper place 
in the Constitution or the common law. Judges are apt to be 
naif, simple-minded men, and they need something of Mephisto- 
pheles. We too need education in the obvious — to learn to tran- 
scend our own convictions and to leave room for much that we 
hold dear to be done away with short of revolution by the orderly 
change of law. 

Consequently, it is a cause for grave concern when we find 
Judge Albert B. Anderson, who later enjoined the coal strike, 
using this language from the bench, even though in the par- 
ticular case he made a very good decision : '° 

I think that about the least commendable sort of folks I know 
are these Russians, who have fled to this country, and are not 
anything like satisfied with what they have here. Why ? Because 
we do not give them everything they want. Mary Antin was 
here not long ago and delivered an address, but she didn't simply 
want the Jews to have their rights. The trouble with Mary Antin 

69 Speeches by Oliver Wendell Holmes, 101 ; quoted in 29 Harv. L. 
Rev. 691. 

70 U. S. V. Zimmerman, Nelles, 10-12. 



THE WAR WITH GERMANY 83 

is that she wanted the Jews to have everything that we have got; 
and that is the way with this gentleman. . . . I do not like 
the word " Socialist " or these Socialists. The Socialist always 
flatters himself when he calls himself a Socialist. He means to 
leave the impression that he is more generous and more unselfish 
than the average run of men ; but he doesn't want to be called an 
anarchist. ... If I had time I would like to have somebody 
explain what it means except for the " have-nots " to take 
it away from the " haves ". That is all there is to it; so I have 
not much patience with that sort of thing or soap-box orators. 
Why don't they go hire a hall? 

One fears that he will not always add as he wisely did : 

Free speech means the right to say foolish things as well as 
the right to say sensible things. 

Judge Wade said in sentencing Mrs. O'Hare : ^^ 

Well, I tell you, if that is the sort of stuff the socialist party 
stands for, if its gospel is the gospel of hate, and contempt of 
religion and charity, it has not any place on the American soil 
either in times of war or times of peace. 

The feeling against the I.W.W. was very bitter in the 
West, and convictions were numerous. One of these has 
been reversed because Judge Wolverton in Oregon charged : ^^ 

The I.W.W. is a disloyal and unpatriotic organization. Adher- 
ents thereof owe no allegiance to any organized government, and 
so far as the government is concerned the organization itself is 
thoroughly bad. 

Contrast with this language the words of Judge Amidon 
in trying a member of the Non-Partisan League : ''^ 

The head and front of it is that the speech tended to array 
class against class. I have been on this earth quite a spell myself. 
I never have known of any great reform being carried through 

71 Nelles, 47. 

72 Kumpula v. U. S., 261 Fed. 49. Another case of reversal for the 
prejudicial attitude of the court is Rutherford v. U. S., 258 Fed. 855. 
See " Lawless Enforcement of Law," 33 Harv. Law Rev. 956. 

7 3 U. S. V. Brinton, Bull. Dept. Just., No. 132. 



84 FREEDOM OF SPEECH 

where the people whose established condition would be disturbed 
by the carrying out of the reform did not say that the people who 
were trying to bring about the reform were stirring up class 
against class. That is an argument that I know to be at least 
3,500 years old from my knowledge of history, and it is repeated 
in every effort to change an existing condition. 

Besides the war spirit and economic opinions, one more 
factor must be mentioned which may possibly have affected 
the Espionage Act cases, the supervision of United States 
judges by the Department of Justice. Here, as with regard 
to the methods of jury selection, I draw no conclusions what- 
ever because of the insufficiency of data, but present the 
charge which has been made, that special agents have watched 
the proceedings of the courts and the district attorneys, 
swift to report to Washington any charge or action which 
has seemed to their excited temper not to measure up to the 
full standard of patriotic duty. In his book on Juridical 
Reform,'^ John D. Works, formerly Justice of the Supreme 
Court of California, and United States Senator for that 
state, points out : 

Practically, Federal judges are selected by the Attorney Gen- 
eral of the United States. All applications for appointment are 
referred to, investigated by, and reported upon by him, and, where 
there are a number of applicants, he recommmends to the 
President the one selected by him, and usually his recommenda- 
tion is approved and the applicant of his choice appointed. The 
Attorney General is also the attorney of the Government in all 
its litigation before the judges he has selected. Not only this, 
but he assumes, and actually exercises, the right to investigate and 
supervise the course and conduct of these same judges, and has 
in some instances, — whether generally or not is not known, — 
made secret investigations of Federal judges through secret agents 
and without the knowledge of such judges. 

If these charges are not proved untrue, a very serious 
danger in all sedition legislation is revealed, for there is no 

7*N. Y., 1919, pp. 123-125. Senator Works recommends that the 
power of selecting, recommending, and investigating judges be vested 
elsewhere than in the Department of Justice. 



THE WAR WITH GERMANY 85 

branch of the criminal law where convictions may on occa- 
sion become so important in the eyes of a government. 

The number of Espionage Act judges who are guilty of 
actually prejudicial conduct at the trials is comparatively 
few, and in many respects the judges deserve the praise 
which Mr. O'Brian expresses ^^ for giving great latitude to 
the defendant's proof ^^ and urging upon the jury the neces- 
sity for the dispassionate consideration of evidence. The 
defect is, for the most part, not so much in what they said 
as in what they did not say. In the first place, despite the 
vagueness of the District Court test, common sense ought 
to have led them to withdraw many more cases of remote 
language from the jury, as Justice Brandeis has forcibly 
insisted in his Tagehlatt opinion.^^ And whenever there was 
enough apparent relation to the raising of armies to justify 
the submission of the evidence to the jury, they should have 
cautioned them against convicting because the words might 
possibly and indirectly cause discontent in the forces or a 
refusal to enlist. The juries needed much more careful guid- 
ance on the issue of intent and far more discretion should 
have been exercised in the admission of prior utterances, 
because of the danger that the jury would convict the de- 
fendant as an undesirable citizen, who, taken all in all, ought 
to be shut up.'* Furthermore, whenever a charge does men- 
tion freedom of speech, it is almost sure to say or imply that 

75 O'Brian, 310. 

76 On the importance of such a policy in political criminal trials, see 
Robert Ferrari in 3 Minn. L. Rev. 365, and 66 Dial 647 (June 28, 1919). 
Cf. the opportunity given Debs, Nearing, Eastman, and even the 
I.W.W.'s at Chicago to speak in their own defense with the refusal 
of the Minnesota state court to hear Townley, when at the close of his 
case he arose in the hot night with coat off to address the jury. 109 
Nation 144. 

77 See page 100, infra. Cf. O'Brian, 309: " The chief difficulty on any 
trial has naturally been the question of what quantum of evidence 
would, as a matter of law, justify submitting to the jury the question 
of unlawful intent and the question of the reasonable and natural 
result of the utterance complained of." 

7 8 Admissibility of such utterances has been contested, but see the 
Abrams decision. Cf. People v. Molyneux, 168 N. Y. 264, a famous case 
of the other view. See Wigmore on Evidence, §§ 302, 367. 



86 FREEDOM OF SPEECH 

it has nothing to do with opposition to war and class such 
opposition with such extreme utterances hke advocacy of a 
natural right to kill men or outrage women. Almost no 
emphasis is laid on the desirability of wide discussion so long 
as there is no real interference with the raising of armies, 
even discussion by those opposed to the war. The charge of 
Judge Augustus Hand in the trial of Max Eastman is a 
notable exception:'^ 

Every citizen has a right, without intent to obstruct the recruit- 
ing or enlistment service, to think, feel, and express disapproval 
or abhorrence of any law or policy or proposed law or policy, 
including the Declaration of War, the Conscription Act, and the 
so-called sedition clauses of the Espionage Act; belief that the war 
is not or was not a war for democracy ; belief that our participa- 
tion in it was forced or induced by powers with selfish interests 
to be served thereby; belief that our participation was against 
the will of the majority of the citizens or voters of the country; 
belief that the self-sacrifice of persons who elect to suffer for 
freedom of conscience is admirable ; belief that war is horrible ; 
belief that the Allies' war aims were or are selfish and undemo- 
cratic ; belief that the Hon. Elihu Root is hostile to socialism, and 
that his selection to represent America in a socialistic republic was 
ill-advised. 

It is the constitutional right of every citizen to express his 
opinion about the war or the participation of the United States 
in it ; about the desirability of peace ; about the merits or demerits 
of the system of conscription, and about the moral rights or claims 
of conscientious objectors to be exempt from conscription. It is 
the constitutional right of the citizen to express such opinions, even 
though they are opposed to the opinions or policies of the adminis- 
tration ; and even though the expression of such opinion may 
unintentionally or indirectly discourage recruiting and enlistment. 

In one matter over which they had complete control, the 
District Court judges must bear a lasting blame. The only 
proceedings in our law comparable to the Espionage Act 

79 Nelles, 29, 30. As this charge was not reprinted in the Bulletins 
of the Department of Justice, it had no effect upon other district 
judges, except possibly in U. S. v. Debs, which permits "reasonable and 
tempered discussions." Bull. Dept. Just., No. 155, p. 12. Judge Clayton 
refused to repeat Judge Hand's words in his Abrams charge. 



THE WAR WITH GERMANY 87 

sentences are the sedition prosecutions under George III, 
with which so many parallels have been found. Indeed, at 
this point the parallelism breaks down. The longest sen- 
tences for sedition in England were four years, and even 
Braxfield and his Scotch colleagues did not exceed fourteen 
years, of transportation and not imprisonment. Our judges 
have condemned at least eleven persons to prison for ten 
years, six for fifteen years, and twenty-four for twenty 
years. ®° Judge Van Valkenburgh summed up the facts with 
appalling correctness in view of the virtual life terms im- 
posed under the Espionage Act, when he said that freedom 
of speech means the protection of " criticism which is made 
friendly to the government, friendly to the war, friendly to 
the policies of the government." ^^ 

V. The Supreme Court Decisions 

To me it seems simply a case of flagrant mistrial, likely to 
result in disgrace and great injustice, probably in life imprison- 
ment for two old men, because this court hesitates to exercise the 
power, which it imdoubtedly possesses, to correct, in this calmer 
time, errors of law which would not have been committed but for 
the stress and strain of feeling prevailing in the early months 
of the late deplorable war. — Justice Clarke, dissenting in the 
Tagehlatt case. 

The United States Supreme Court did not have an oppor- 
tunity to consider the Espionage Act until 1919, after the 
armistice was signed and almost all the District Court cases 
had been tried. Several appeals from conviction had resulted 

80 These figures include only sentences stated in Rep. Atty. Gen., 
1919, Exh. 21, and in the reported cases, listed in Appendix II. except 
the I.W.W. case (U. S. v. Haywood), which is omitted because I do not 
know how far the sentences were imposed because of counts under the old 
conspiracy statutes. There are, however, many unreported cases with 
long sentences, e.g., 26 at Sacramento for ten years. No omission is 
made for reversals and commutations, because they do not lessen the 
responsibility of the district court judges, whose work is at this point 
under review. Indeed, there could be no more biting comment on the 
way these judges administered the Act than the enormous reductions in 
scores of sentences recommended by the Department of Justice. See 
Appendix II for instances. 

81 United States v. Rose Pastor Stokes, p. 14. 



88 FREEDOM OF SPEECH 

in a confession of error by the government,^^ but at last four 
cases were heard and decided against the accused.*^ Of these 
the Schenck case was one of the few reported prosecutions 
under the Act where there clearly was incitement to resist 
the draft. The defendants had mailed circulars to men 
who had passed exemption boards, which not only declared 
conscription to be unconstitutional despotism, but urged the 
recipients in impassioned language to assert their rights. 
Such utterances could fairly be considered a direct and dan- 
gerous interference with the power of Congress to raise ar- 
mies, and were also counseling unlawful action within Judge 
Hand's interpretation of the statute. Consequently, no real 
question of free speech arose. Nevertheless, the defense of 
constitutionality was raised, and denied by Justice Holmes: 

We admit that in many places and in ordinary times the 
defendants in saying all that was said in the circular would have 
been within their constitutional rights. But the character of 
every act depends upon the circumstances in which it is done. . . . 
The question in every case is whether the words used are used 
in such circumstances and are of such a nature as to create a clear 
and present danger that they will bring about the substantive evils 
that Congress has a right to prevent. It is a question of proximity 
and degree. When a nation is at war many things that might be 
said in time of peace are such a hindrance to its effort that their 
utterance will not be endured so long as men fight and that no 
Court could regard them as protected by any constitutional right. 

Although " the substantive evils " are not specifically de- 
fined, they mean successful interference with the particular 
power of Congress that is in question — in this instance, the 
war power. Since Congress is authorized to declare war and 
raise armies, it can expedite its task by punishing those who 
actually keep men out of the service, whether by starting a 
draft riot or by effectually persuading men not to register 
or not to enlist. And Congress can go one step farther. Be- 

82Baltzer and Head cases, 249 U. S. 693. 

83 Schenck v. U. S., 249 U. S. 47 (1919); Sugarman v. U. S., ibid. 
130; Frohwerk v. U. S., ibid. 204; Debs v. U. S., ibid. 211. The italics 
Are mine. 



THE WAR WITH GERMANY 89 

sides punishing overt acts of interference with the war, it 
can prevent such acts from occurring by penalizing unsuc- 
cessful efforts to interfere, whether they are acts or words. 
But this desire to head off actual injury to the government 
is, we have seen, the basis of all suppression of discussion, 
unless it is limited very narrowly. In order to give force 
to the First Amendment, Justice Holmes draws the boundary 
line very close to the test of incitement at common law and 
clearly makes the punishment of words for their remote bad 
tendency impossible. Moreover, the close relation between 
freedom of speech and criminal attempts is indicated by the 
use of a phrase employed by the Justice in a leading attempt 
case, Commonwealth v. Peaslee.** Justice Holmes interprets 
the Espionage Act more widely than Judge Hand, in making 
the nature of the words only one element of danger, and in 
not requiring that the utterances shall in themselves satisfy 
an objective standard. Thus he loses the great administra- 
tive advantages of Judge Hand's test. But while the decision, 
like the District Courts, allows conviction for expressions 
of opinion uttered with a bad intention, it imposes additional 
requirements, which most trial courts had neglected. Words 
are criminal under the second and third clauses of the Act 
only because of their relation to the armed forces, and that 
relation must be so close that the words constitute " a clear 
and present danger " of injury to the raising of those forces 
or of mutiny and similar breaches of discipline. Words and 
intentions are not punishable for their own sake, or merely 
for their tendency to discourage citizens at war. Thus the 
opinion, especially the italicized sentence, substantially agrees 
with the conclusion reached by investigation of the history 
and political purpose of the First Amendment. The concept 
of freedom of speech received for the first time an authorita- 
tive judicial interpretation in accord with the purpose of the 
framers of the Constitution. 

The Sugarman decision, written by Justice Brandeis, 
was much like the Schenck case, as there was evidence 

84 177 Mass. 267, 272 (1901). See page 53, supra. 



90 FREEDOM OF SPEECH 

that the defendant had in a speech advised a number of 
registrants not to report for military service when called. 
The Espionage Act plainly covers such utterances, and they 
would have been criminal under the conspiracy statutes of 
the Civil War, if other persons had been associated with the 
speaker. The Frohwerk decision was more difficult, and Jus- 
tice Holmes' opinion recognizes that if more evidence had 
been presented on the inadequately prepared record there 
might have been cause for reversal. The defendant had in- 
serted, several articles in the Missouri Staats-Zeitung on the 
constitutionality and merits of the draft and on the pur- 
poses of the war. Even in the Department of Justice there 
was considerable question whether these were not an advocacy 
of a change in governmental policy as distinguished from 
advocacy of obstruction of such policy, and it did not appear 
that there was any special effort to reach men who were 
subject to the draft. Justice Holmes thought, however, that 
on the record as it was the evidence might conceivably have 
been sufficient to sustain a conviction, since the circumstances 
and the intention, though not the words per se, might satisfy 
the danger-test. 

It may be that all this might be said or written even in time 
of war in circumstances that would not make it a crime. We 
do not lose our right to condemn either measures or men because 
the country is at war. . . . But we must take the case on the 
record as it is^ and of that record it is impossible to say that it 
might not have been found that the circulation of the paper was 
in quarters where a little breath would be enough to kindle a flame 
and that the fact was known and rehed on by those who sent that 
paper out. 

If the Supreme Court had applied this same standard of 
" clear and present danger " to the utterances of Eugene 
V. Debs, in the remaining decision, it is hard to see how he 
could have been held guilty. The test is not mentioned, 
however, but Justice Holmes is willing to accept the verdict 
as proof that actual interference with the war was intended 
and was the proximate effect of the words used. It is regret- 



THE WAR WITH GERMANY 91 

table that he should have felt unable to go behind a verdict 
which had been found without any reference to the danger 
of the utterances. The point is that Judge Westenhaver did 
not instruct the jury according to the Supreme Court test 
at all, but allowed Debs to be found guilty, in Justice 
Holmes's words, because of the " natural tendency and rea- 
sonably probable effect " of his speech, and gave a fairly 
wide scope to the doctrines of indirect causation and con- 
structive intent, so that the defendant could have been and 
probably was *^ convicted for an exposition of socialism, 
merely because the jury thought his speech had a tendency 
to bring about resistance to the draft. If the Supreme Court 
test is to mean anything more than a passing observation, 
it must be used to upset convictions for words when the trial 
judge did not insist that they must create " a clear and 
present danger " of overt acts. 

Justice Holmes seems to discuss the constitutionality of 
the Espionage Act of 1917 rather than its construction. 
There can be little doubt that it is constitutional under any 
test if construed naturally, but it has been interpreted in 
such a way as to violate the free speech clause and the plain 
words of the statute, to say nothing of the principle that 
criminal statutes should be construed strictly. If the Su- 
preme Court test had been laid down in the summer of 1917 
and followed in charges by the District Courts, the most 
casual perusal of the utterances prosecuted makes it sure 
that there would have been many more acquittals. Instead, 
bad tendency and presumed intent have been the tests of 
criminality, tests which this article has endeavored to prove 
wholly inconsistent with freedom of speech, and any genuine 
discussion of public affairs. 

The decision shows clearly the evils of the broad con- 

85 United States v. Debs, Bull. Dept. Just., No. 165 (N. D. Oh., 
1918). See especially t',e last paragraphs on page 8, and page 15: 
" In deciding what the defendant's intention was, permit me to sug- 
gest to you these questions: Ought he not to have reasonably foreseen 
that the natural and probable consequences of such words and utter- 
ances would or might be to cause insubordination, etc.?" 



92 FREEDOM OF SPEECH 

struction of the Espionage Act, which rejected the objective 
standard of the meaning of the words used. Debs was con- 
victed of an attempt to cause insubordination in the army 
and obstruct recruiting, yet no provocation to any such 
definite and particular acts was proved. He spoke to a 
convention of Sociahsts in support of their economic views, 
instancing the war as the supreme curse of capitalism. In 
a few sentences he approved the conduct of persons convicted 
of like offenses, saying, for example, that if Mrs. Stokes 
was guilty so was he. Her conviction has since been re- 
versed. Not one word was designed for soldiers, not one 
word urged his hearers to resist the draft, objectionable as 
he considered it. Undoubtedly he admitted at his trial that 
he had obstructed the war — " I abhor war. I would oppose 
the war if I stood alone. When I think of a cold, glitter- 
ing steel bayonet being plunged in the white, quivering flesh 
of a human being, I recoil with horror." But the only 
question before the jury was whether he had tried to ob- 
struct it in the ways made unlawful in the statute. If all 
verbal or written opposition to the war furnishes a basis 
for conviction, because it is dangerous under the circum- 
stances and indicates a criminal mind, then none but the 
most courageous will dare speak out against a future 
war. 

" It is useless," writes Ernst Freund,^^ " to over-empha- 
size the substantive limitations of the constitution; the real 
securities of rights will always have to be found in the 
painstaking care given to the working out of legal princi- 
ples. So long as we apply the notoriously loose common 
law doctrines of conspiracy and incitement to offenses 
of a political character, we are adrift on a sea of doubt and 
conjecture. To know what you may do and what you may 
not do, and how far you may go in criticism, is the first con- 
dition of political liberty ; to be permitted to agitate at your 

86 Ernst Freund, "The Debs Case and Freedom of Speech," 19 
New Republic 13 (May 3, 1919) ; and the correspondence in 19 ibid. 
161 (May 31, 1919). 



THE WAR WITH GERMANY 93 

own peril, subject to a jury's guessing at motive, tendency 
and possible effect, makes the right of free speech a pre- 
carious gift." 

The last sentence of the passage quoted from the Schenck 
case seems to mean that the Supreme Court will sanction any 
restriction of speech that has military force behind it, and 
reminds us that the Justice used to say when he was young, 
" that truth was the majority vote of that nation that could 
lick all others." ^^ His liberalism seems in these decisions 
to be held in abeyance by his belief in the relativity of values. 
It is not by giving way to force and the majority that truth 
has been won. Hard it may be for a court to protect those 
who oppose the cause for which men are dying in France, but 
others have died in the past for freedom of speech. 

After all, whatever we may think about such a close 
case as the Debs decision, it can best be regarded as a rea- 
son for repealing the Espionage Act, if it must be so con- 
strued. And surely the cause of freedom of speech profited 
in the long run from Justice Holmes's opinion in these three 
cases more than if he had favored reversal, for subsequent de- 
cisions prove that he would then have been in the minority 
and would not have been able, as he was, to announce with 
the backing of a unanimous court the rule of clear and 
present danger, which should serve as a guiding principle 
in the future. Already its application in the Circuit Courts 
of Appeals has led to the setting aside of some convic- 
tions,^® and It ought to make impossible hereafter a repe- 
tition of some of the worst decisions under the Espionage 
Act. 

That It has not, however, made freedom of speech secure 
is proved by the later interpretations of that statute in 
the Supreme Court. In November, 1919, came a second 
group of cases, of which one turned largely on procedure,*® 

87 Oliver Wendell Holmes, "Natural Law," 32 Harx). L. Bev. 40 
(1918). 

88 Kammann v. U. S., 259 Fed. 192; Harshfteld v. U. S,, 260 Fed. 659. 
seStilson v. U. S., 250 U. S. 583 (1919). 



94 FREEDOM OF SPEECH 

and the other, Abrams v. United States, has been reserved 
for a separate chapter, because it involves the special ele- 
ment of opposition to Russian intervention and because it 
furnishes a valuable example of the way political crimes, 
which were first known in this country because of the Es- 
pionage Act, are liable to be tried. Justice Holmes and 
Justice Brandeis have now and henceforth parted company 
with the rest of the court. 

In the opening of 1920 came a third group of two deci- 
sions,®" which were chiefly concerned with the first clause 
of the Espionage Act of 1917, punishing willfully pub- 
lished " false reports and statements with intent to inter- 
fere with the operation or success of the military or naval 
forces of the United States or to promote the success of 
its enemies." Thus far, very little has been said of this 
clause and of the District Court cases which construed it 
to apply to opinions about the causes of the war, or the in- 
fluence of profiteers. 

Conspicuous among such cases was the conviction of five 
officers of the corporation issuing the Philadelphia Tage- 
hlatt, a German-language daily and Sunday newspaper. 
After an acquittal on the charge of treason for publishing 
fifteen articles, which were most assuredly unpatriotic in 
tone, glorifying German strength and success, abusing our 
allies, and attacking the sincerity of the United States, 
they were indicted in nine counts under the Espionage Act 
for the same utterances and all found guilty. In Schaefer 
V. United States two defendants were discharged by the Su- 
preme Court for want of responsibility for the articles. 
Three convictions (two for five years, one for two years) 
were affirmed by a majority of six speaking through Justice 
McKenna ; Justice Brandeis filed a dissenting opinion on 
behalf of himself and Justice Holmes ; and Justice Clarke, 
who had spoken for the majority in the Abrams case, now 
also dissented, not because he found any violation of the 
First Amendment, but upon the ground that the Act had 

90 Schaefer v. U. S., 251 U. S. 468; Pierce v. U. S., 40 Sup. Ct. 205. 



THE WAR WITH GERMANY 95 

been misinterpreted by the trial court, whose charge " was 
so utterly unadapted to the case ... as to be valueless or 
worse as a direction to the jury." 

This newspaper was so poor financially that it was not 
able to have any telegraphic service, and consequently filled 
its columns with clippings from other newspapers. As it 
did not print so many columns as they, it was necessarily 
obliged to cut and condense both the headlines and the 
body of the articles. It did not indicate the source of its 
articles or imply that they were complete copies. The 
falsity alleged by the government was not that the arti- 
cles which were published were false in fact, but merely 
that they differed from the originals, and had been altered 
or mistranslated so as to bear a changed meaning which 
was depressing or detrimental to patriotic ardor. For in- 
stance, the news editor quoted an Amsterdam dispatch 
about the shortage of food in Holland because of our sei- 
zure of ships, and was convicted for adding a sentence of 
comment that our proposal for sending food would be re- 
jected, although this sentence was not made part of the 
quotation, but was clearly indicated for what it was.®^ He 
was convicted for copying an account of the fall of Riga, 
and omitting one sentence from the original, " From this 
it can be concluded that the fall of Riga has united the 
opposing political factions in Russia." He was convicted 
because in translating a speech of Senator La Follette, pre- 
dicting bread-lines as a consequence of the failure to tax 
profiteers, the word Brot-riots was used instead of Brod- 
reihen. The wide divergence of opinion in the Court is 
indicated by Justice McKenna's statement, " There could 
be no more powerful or effective instruments of evil than 
two German newspapers organized and conducted as these 
papers were organized and conducted," as against that of 
Justice Brandeis, " To hold that such harmless additions 
to or omissions from news items, and such impotent ex- 
pressions of editorial opinion, as were shown here, can af- 
81 U. S. V. Werner, 247 Fed. 708. 



96 FREEDOM OF SPEECH 

ford the basis even of a prosecution, will doubtless discour- | 
age criticism of the policies of the Government." ' 

A comparison of the opinions of Justice McKenna and 
Justice Brandeis will form a valuable study in judicial method 
and in the two ways of solving any problem of freedom of 
speech. Of course we shall not find that total ignoring 
of the social interest in discussion, which blots many Dis- 
trict Court cases, in a member of the Supreme Court. The 
difference between the two Justices is a difference in the 
degree of emphasis placed upon that interest and in their 
approach to the case. Since the limits of the right of 
freedom of speech in war time necessarily involve a con- 
flict between the desirability of public knowledge of the 
truth about the war and the danger of defeat, it makes 
all the difference in the world whether the judge who sets 
out to determine those limits starts from the unqualified 
language of the First Amendment, which, unlike the Habeas 
Corpus clause, makes no exception of invasion,^^ and seeks 
to give to public opinion as much scope as is possible in 
view of the danger and the precise words of the statute; 
or whether he is primarily concerned to avert all influences 
which might conceivably delay or forfeit victory and is 
anxious not to go any farther to permit words of that tend- 
ency than seems absolutely necessary if we are to have any 
discussion about a war at all. Again, it makes all the dif- 
ference in the world whether this judge is satisfied to say, 
*' Free speech is not an absolute right, and when it or any 
right becomes wrong by excess is somewhat elusive of defi- 
nition," without seeking to define it, or whether he insists 
that the preservation of this right must inevitably depend 
on the latitude allowed to the human machinery adminis- 
tering the law. 

Justice McKenna approaches the problem from the side 
of the war power, and entrusts freedom of speech to the 

92 "Not one of these safeguards [in the Bill of Rights] can the 
President, or Congress, or the .TiTlioiary disturb, except the one con- 
cerning the writ of habeas corpun. —Field, J,, in Ex parte Milligan, 2 
Wall. 125. 



THE WAR WITH GERMANY 97 

jury's sense of fairness rather than to any guiding prin- 
ciples. In his opinion the restraints of the Espionage Act 
are not excessive or ambiguous, and the trial court gives 
sufficient protection to the right of free speech if it admon- 
ishes the jury to decide impartially after close attention 
to the evidence. The statute is directed against conduct 
which might cause our armies " to operate to defeat and 
the immeasurable horror and calamity of it." He is sur- 
prised that the Constitution should have been invoked to 
protect " the activities of anarchy or of the enemies of the 
United States." This is an argument always used to under- 
mine freedom of speech, for if it does not protect criticism 
hostile to the government it has little value, and such criti- 
cism in the times when it is most needed is invariably de- 
nounced by the supporters of the government as revolution 
or treason. Only wide discussion and time can tell whether 
the activities of the opponents of our wars, James Russell 
Lowell, the Hartford Convention, William Graham Sum- 
ner, Vallandigham, were the activities of the enemies of 
the United States or of its friends. 

To all the passages he applies the eighteenth-century 
tests of bad tendency and presumptive intent to see whether 
the evidence would justify conviction. The only limit on 
remoteness which he recognizes seems to depend on the will 
of the jury. Thus he says of the conviction for obstruct- 
ing enlistment by a reprint from a Berlin paper, entitled 
" Yankee Bluff," which ridiculed the possibility of our giv- 
ing any aid to the Entente, so slow were our war prepara- 
tions, that the article might seem to its readers truly de- 
scriptive of American inability to combat German prowess 
and thereby " chill and check the ardency of patriotism 
and make it despair of success and in hopelessness relax 
energy both in preparation and in action." What was 
its purpose if not that? We cannot conclude that the ob- 
servations were the mere expression of peevish discontent, 
but must take them at their word, as the jury did, and 
ascribe a more active and sinister aim. Success is unnec- 



98 FREEDOM OF SPEECH 

cssary. The tendency of the articles and their efficacy were 
enough for offense, and this is all that " intent " and " at- 
tempt " mean. To require more would make the law use- 
less, for it was passed in precaution, and the consequences 
of its violation might appear only in disaster. In other 
words, any newspaper editor who reprints German brag- 
ging is liable to imprisonment unless he can furnish a clean 
bill of health as to his loyal intentions. 

Justice McKenna also regards it as criminal to predict 
turbulent resistance to a war, as in the La Follette report, 
or to say that the war was commenced without the people's 
consent. Of an article, attacking " the pro-British policy 
of the Government," he says, in language that leaves no 
room for questioning as to the righteousness of any war: 

Its statements were deliberate and willfully false, the purpose 
being to represent that the war was not demanded by the people 
but was the result of the machinations of executive power, and 
thus to arouse resentment to it and what it would demand of 
ardor and effort. In final comment we may say that the article 
in effect justified the German aggressions. 

Justice Brandeis, on the other hand, starts from the 
danger-test of freedom of speech in the Schenck case and 
from the actual words of the Espionage Act. He even 
goes back to an important circumstance preceding the stat- 
ute, the recommendation of the War College for legislation 
to prevent injurious disclosures on military matters, to get 
help on the meaning of the " false statement clause." 

Congress sought thereby to protect the American people from 
being willfully misled to the detriment of their cause by one 
actuated by the intention to further the cause of the enemy. 
Willfully untrue statements which might mislead the people 
as to the financial condition of the Government and thereby em- 
barrass it; as to the adequacy of the preparations for war or the 
support of the forces ; as to the sufficiency of the food supply ; or 
willfully untrue statements or reports of military operations which 
might mislead public opinion as to the competency of the army or 
navy or its leaders [see " The Relation Between the Army and 



THE WAR WITH GERMANY 99 

the Press in War Time," War College Publication, I916] ; or will- 
fully untrue statements or reports which might mislead officials 
in the execution of the law, or military authorities in the dis- 
position of the forces. Such is the kind of false statement and the 
only kind which, under any rational construction, is made criminal 
by the act. Could the military and naval forces of the United 
States conceivably have been interfered with or the success of the 
enemy conceivably have been promoted by any of the three pub- 
lications set forth above.'' 

And in connection with the " Yankee Bluff " article, he 
applied the same tests of danger and statutory wording 
to the recruiting clause of the 1917 Act, confirming the 
interpretation of the Act advanced earlier in this chapter :^^ 

It is not apparent on a reading of this article — which is not 
unlike many reprints from the press of Germany to which our 
patriotic societies gave circulation in order to arouse the American 
fighting spirit — how it could rationally be held to tend even re- 
motely or indirectly to obstruct recruiting. But as this court 
has declared . . . the test to be applied — as in the case of 
criminal attempts and incitements — is not the remote or possible 
effect. There must be the clear and present danger. Certainly 
men judging in calmness and with this test presented to them 
could not reasonably have said that this coarse and heavy humor 
immediately threatened the success of recruiting. 

The most important part of his opinion is the repeated 
criticism of the administration of the statute in the trial 
below. The jury, however much instructed to be calm and 
unbiassed, were authorized to convict for any words which 
would lessen " our will to win, or, as it is generally ex- 
pressed, our will to conquer." Jurymen need something 
more than " a sense of duty and a sense of justice." They 
need hard and fast tests of criminality, which will bring 
home to them the standard of " clear and present danger." 
And in this case that test should have prevented the evi- 
dence, so remote is it, from going to the jury at all. After 
quoting the words of the unanimous Court in the Schenck 
case, he said: 

83 Page 64, av/pra. 



100 FREEDOM OF SPEECH 

This is a rule of reason. Correctly applied, it will preserve 
the right of free speech both from suppression by tyrannous, well- 
meaning majorities and from abuse by irresponsible, fanatical 
minorities. Like many other rules for human conduct, it can be 
applied correctly only by the exercise of good judgment; and to 
the exercise of good judgment, calmness is, in times of deep 
feeling and on subjects which excite passion, as essential as 
fearlessness and honesty. The question whether in a particular 
instance the words spoken or written fall within the permissible 
curtailment of free speech is, under the rule enunciated by this 
Court, one of degree. And because it is a question of degree the 
field in which the jury may exercise its judgment is, necessarily, 
a wide one. But its field is not unlimited. The trial provided 
for is one by judge and jury; and the judge may not abdicate 
his function. If the words were of such a nature and were used 
under such circumstances that men, judging in calmness, could 
not reasonably say that they created a clear and present danger 
that they would bring about the evil which Congress sought and 
had a right to prevent, then it is the duty of the trial judge to 
withdraw the case from the consideration of the jury; and if 
he fails to do so, it is the duty of the appellate court to correct 
the error. 

Then he emphasized a principle which has often been 
ignored in sedition trials, and which might have affected 
the Debs decision, as well as the Abrams case, that the 
appellate court ought not to determine the nature and 
possible effect of a speech or writing simply bj culling 
here and there a sentence and presenting it separated from 
the context. It ought to be read as a whole, and often 
considered with other evidence which may control its mean- 
ing. 

Finally, he warned the Court, in a passage which I shall 
quote later with reference to peace-time Sedition laws, that 
the sweeping application of a criminal statute to utterances 
with scant regard for the First Amendment would have 
disastrous consequences for freedom of speech in future 
periods of excitement. In truth, the passage of the simple 
language of the Espionage Act of 1917 was, little as we 
thought it at the time, the deadliest blow ever struck at a 
free press in the United States, and the beginning of a 



THE WAR WITH GERMANY 101 

series of encroaclimcnts on civil rights of every kind, whose 
full consequences we are dimly beginning to realize. 

The latest decision is United States v. Pierce. This was 
a prosecution for distributing " The Price We Pay," one 
of those leaflets which, like " The Finished Mystery " of 
the Pastor Russell sect, figure in several Espionage Act 
cases. The pamphlet was a highly colored and sensational 
document by St. John Tucker, one of the defendants in the 
Berger case. It was issued by the natici^al office of the 
Socialist Party at Chicago, and " contained much in the 
way of denunciation of war in general, the pending war in 
particular, something in the way of assertion that under 
Socialism things would be better, little or nothing in the 
way of fact or argument to support the assertion." The 
four defendants in New York had refrained from circu- 
lating it until after a prosecution of other persons in Mary- 
land, based on the same pamphlet but under the con- 
spiracy statutes for obstruction of the draft, had termi- 
nated in a directed acquittal on the ground that it was 
intended to get recruits for the Socialist Party, and not 
even an attempt to persuade men to disobey the draft law.^* 
Pierce and his associates were then arrested and convicted. 
Seven judges through Justice Pitney sustained the convic- 
tion, while Justice Brandeis dissented with the concurrence 
of Justice Holmes. 

The principal ground of conviction was the false state- 
ments clause. Justice Brandeis pointed out that the danger- 
test applies to this clause as much as the other two, and 
that three additional elements of crime must be established: 
(1) The statement or report must be of something capable of 
being proved false in fact. The expression of an opinion, 
for instance, whether sound or unsound, might conceivably 
afford a sufficient basis for the charge of attempting to 
cause insubordination, disloyalty or refusal of duty, or for 
the charge of obstructing recruiting; but, because an opin- 
ion is not capable of being proved false in fact, a statement 

34 U. S. V. Baker, 247 Fed. 124, (1917). 



102 FREEDOM OF SPEECH 

of it cannot be made the basis of a prosecution under this 
clause. (2) The statement or report must be proved to be 
false. (3) The statement or report must be known by 
the defendant to be false when made or conveyed. 

Three passages, consisting of five sentences in all, were 
culled from this long document as constituting the false 
statements or reports: 

1. Into your homes the recruiting officers are coming. They 
will take your sons of military age and impress them into the 
army. . . . 

And still the recruiting officers will come ; seizing age after age, 
mounting up to the elder ones and taking the younger ones as 
they grow to soldier size. 

2. The Attorney General of the United States is so busy send- 
ing to prison men who do not stand up when the Star Spangled 
Banner is played, that he has no time to protect the food supply 
from gamblers. 

3. Our entry into it was determined by the certainty that if 
the allies do not win, J. P. Morgan's loans to the allies will be 
repudiated, and those American investors who bit on his promises 
would be hooked. 

Only the last passage need detain us. The first is clearly 
true, since " recruiting " was held in the Schenck case to 
include the draft, though a regular army major gravely 
testified at the trial that it had only to do with the volun- 
teer service. The prediction that older and younger per- 
sons would be drafted was, of course, fulfilled. Yet the 
point was left to the jury. While civilians could not be 
prosecuted for sitting during the National Anthem, such 
an obviously figurative way of saying that the Attorney 
General was devoting important time to trivial sedition 
cases could not properly be regarded as a statement of 
fact within a twenty-year criminal penalty.^^ 

Justice Pitney held that these passages satisfied the three 
requirements laid down by Justice Brandeis. 

95 Under a local law, J. W. Beckstrom of Chicago was, since the 
Pierce trial, fined $50 for refusing to stand when the " Star-Spangled 
Banner " was played in a theater. — War-time Prosecutions, 30. 



THE WAR WITH GERMANY 103 

On the points of intention and proximate cause he said 
that the jury might fairly beheve that the leaflet " would 
have a tendency to cause insubordination " ; and that it was 
intended to bring home to eligible men and especially to 
" their parents, sisters, wives, and sweethearts," a sense of 
impending personal loss, calculated to discourage men from 
entering the service, to arouse suspicion whether the chief 
law officer was not more concerned in enforcing the strictness 
of military discipline than in protecting the people against 
improper speculation in their food supply, and to produce 
a belief that our participating in the war was the product 
of sordid and sinister motives. One rubs his eyes and won- 
ders whether he has dreamed himself back into the eighteenth 
century. 

The most dangerous aspect of this case, however, is the 
decision that the opinion about the economic cause of the 
war is a false statement and known to be false. Justice 
Pitney says: 

Common knowledge (not to mention the President's Address to 
Congress of April 2, 1917, and the Joint Resolution of April 6 
declaring war, which were introduced in evidence) would have 
sufficed to show at least that the statements as to the causes that 
led to the entry of the United States into the war against Germany 
were grossly false; and such common knowledge went to prove 
also that defendants knew they were untrue. That they were false 
if taken in a literal sense hardly is disputed. 

Justice Pitney is a great equity judge, and often a man 
is held subject to the equitable rights of others because he 
ought reasonably to know of them though in fact he does 
not, but such constructive notice has never before been 
made the basis of criminal responsibility. For example, a 
man purchasing land cannot get rid of a heavy recorded 
mortgage just because he was ignorant of it, but if he resells 
the land without mentioning this still unknown mortgage 
he is not guilty of obtaining money under false pretenses. 
Yet the Supreme Court is willing to say that men who 
wrangled with their neighbors for years about the capitalistic 



104 FREEDOM OF SPEECH 

causes of the war and clung to their views with pig-headed 
devotion knew they were wrong just because they were in a 
small minority. 

Consider where this leads. If opinions about the origin 
and justice of a war are to be regarded as false statements 
if the jury find them erroneous, the proof of truth or fal- 
sity involves logically all available evidence about the causes 
of the war, a staggering task. The proof surely ought not 
to be limited to the President's Message or the Resolution 
of Congress, for then conviction would be a foregone con- 
clusion. Neither by sight nor by hearing can the jury in- 
vestigate this " question of fact." It is a matter of infer- 
ence from the complex and obscure political, economic, and 
social conditions of the nation or even of the world. The 
data for such a judgment, even if a jury had the very 
slightest capacity for making it, are not available during 
a war or for years afterwards. Imagine John Bright or 
James Russell Lowell trying to convince a jury that the 
Crimean or the Mexican Wars were due to sinister motives, 
a question on which men are still disputing. 

What minority opinion can be safe in war time under 
Justice Pitney's test? Surely, language which is immune 
from civil defamation suits as comment on a public matter 
ought to be equally immune from the sterner rigors of the 
federal penitentiary. If everything an opponent of a war 
says is to be adjudged false because the jury and the Su- 
preme Court disagree with it, and then he is declared to 
know it is false because most people think it so, the whole 
value of the First Amendment as a means of learning the 
truth about future wars is lost. 

Into this technical reasoning, which virtually ignores 
the standard of clear and present danger and revives the 
District Court test of remotely injurious tendency, cuts the 
common sense of Justice Brandeis. The so-called state- 
ment of fact about the Morgan loans is, he says, merely a 
conclusion or deduction from facts. True, it is not a con- 
clusion of law, but it is not an evidentiary fact. . In its 



THE WAR WITH GERMANY 106 

essence it is the expression of a judgment, like the state- 
ments of many so-called liistorical facts. There is no exact 
standard of absolute truth by which to prove the assertion 
false."® Himself a strong supporter of the war, he recognizes 
nevertheless the possibihty of divergent views: 

The cause of a war — as of most human action — is not single. 
War is ordinarily the result of many co-operating causes, many 
different conditions^ acts and motives. Historians rarely agree 
in their judgment as to what was the determining factor in a 
particular war, even when they write under circumstances where 
detachment and the availability of evidence from all sources mini- 
mizes both prejudice and other sources of error. For individuals, 
and classes of individuals, attach significance to those things which 
are significant to them. And, as the contributing causes cannot 
be subjected, like a chemical combination in a test tube^ to qualita- 
tive and quantitative analysis so as to weigh and value the 
various elements, the historians differ necessarily in their judg- 
ments. One finds the determining cause of war in a great man, 
another in an idea, a belief, an economic necessity, a trade advan- 
tage, a sinister machination, or an accident. It is for this reason 
largely that men seek to interpret anew in each age, and often 
with each new generation, the important events in the world's 
history. 

Not all who voted for the declaration of war did so for 
the President's reasons, and the previous debate, Justice 
Brandeis reminds us, includes many statements that the vast 
loans were instrumental in causing a sentiment through the 
nation in favor of war. 

However strongly we may believe that these loans were not the 
slightest makeweight, much less a determining factor, in the 
country's decision, the fact that some of our representatives in 
the Senate and the House declared otherwise on one of the most 
solemn occasions in the history of the Nation, should help us to 
understand that statements like that here charged to be false 
are in essence matters of opinion and judgment, not matters of 
fact to be determined by a jury upon or without evidence; and 

06 Citing American School of Magnetic Healing v. McAnnulty, 187 
U. S. 94, 104, which held tliat the Postmaster General could not exclude 
from the mails as fraudulent, proposals to cure disease by mental treat- 
ment, since the claim was not subject to proof as to its falsity. 



106 FREEDOM OF SPEECH 

that even the President's addi;ess, which set forth high moral 
grounds justifying our entry »i«to the war, may not be accepted 
as establishing beyond a reasonable doubt that a statement ascrib- 
ing a base motive was criminally false. All the alleged false 
statements were an interpretation and discussion of public facts of 
public interest. . . . To hold that a jury may make punishable 
statements of conclusions or of opinion, like those here involved, 
by declaring them to be statements of facts and to be false would 
practically deny members of small political parties freedom of 
criticism and of discussion in times when feelings run high and 
the questions involved are deemed fundamental. 

It seems extremely ominous that at a time when the 
Supreme Court has shown such solicitude in the United 
States Steel Corporation and stock dividend cases,^^ and 
rightly as I believe, in protecting large bodies of capital 
from unlawful governmental action, it should have been so 
careless in its safeguarding of the fundamental human need of 
freedom of speech, so insistent in this sphere that the inter- 
ests of the government should be secured at all costs. 
Progress is possible only through a genuine application of 
the great principle behind that Amendment which the 
Abrams, Schaefer, and Pierce decisions have reduced almost 
to a pious hope. 

The fundamental right of free men to strive for better condi- 
tions through new legislation and new institutions will not be 
preserved, if efforts to secure it by argument to fellow citizens 
may be construed as criminal incitement to disobey the existing 
law — merely, because the argument presented seems to those 
exercising judicial power to be unfair in its portrayal of existing 
evils, mistaken in its assumptions^ unsound in reasoning or intem- 
perate in language. ^^ 

VI. Censorship and Exile 

The Federal Government has restricted speech in two ways 
besides punishment. It possesses a virtual censorship in 

97 U. S. V. U. S. steel Corp., 251 U. S. 417 (1920); Eisner v. Ma- 
comber, 40 Sup. Ct. 189 (1920). 

88 Brandeis, J., in Pierce v. U. S., supra. 



THE WAR WITH GERMANY 107 

war time over all criticism of its policies, and exercises this 
power at the arbitrary will of an administrative official, who 
is of course directly interested to preserve those policies 
from attack, especially when they touch his own department. 
That this official is not called a censor is immaterial. Under 
the Espionage Act the Postmaster General can exclude from 
the mails, the only profitable, and often the only possible 
means of ejffective publication, anything which he considers 
to be in violation of the statute. In no case during the war 
has any court set aside his decision by injunction or man- 
damus since Judge Hand was reversed as to the Masses, 
Some judges say that they will not review his ruling unless 
it is clearly wrong, which means never. Others declare that 
an opponent of the war does not come into court with clean 
hands and therefore cannot get judicial relief even though 
the ruling is illegal. And the power of the Postmaster Gen- 
eral is not limited to the particular issue of the periodical 
which he declares non-mailable. For instance, after Mr. 
Burleson had suppressed the August number of the Masses, 
he refused to admit the September or any future issues to 
the second-class mailing privilege, even if absolutely free 
from any objectionable passages, on the ground that since 
the magazine had skipped a number, mz., the July number, 
it was no longer a periodical, since it was not regularly 
issued ! He took the same position as to Berger's Milxuaukee 
Leader, and in both instance the courts sustained him, thus 
confirming his right to drive a newspaper or magazine out 
of existence for one violation as determined by him. 

Let us now see what Mr. Burleson has considered to vio- 
late the Espionage Act. By no means did he limit himself 
to pro-German and pacifist articles and books, like Latzko's 
Men in War. He suppressed an issue of the Public for urg- 
ing that more money be raised by taxes and less by loans. 
He suppressed Lenlne's Soviets at Work, a purely economic 
pamphlet, although we were not at war with Russia. He 
suppressed the Nation of September 14, 1918, either for 
criticising the great slacker round-up in New York City, 



108 FREEDOM OF SPEECH 

which Mr. O'Brian states to have been in contravention of 
specific instructions from the Attorney General and a mis- 
take which could not be condoned,^® or more probably for 
attacking Mr. Gompers. He censored any adverse com- 
ment on the affairs of the British Empire. He censored a 
pamphlet by La j pat Rai on India. He censored the 
'i Freeman's Journal and Catholic Register for reprinting 
I Jefferson's opinion that Ireland should be a republic; the 
\ Gaelic American for denouncing the felicitous remarks of 
F. E. Smith during his flying trip to this country, and say- 
ing, " The clear-headed, keen-witted Yankees who read 
his bitter attack on the Irish will not wonder at the Irish 
I for refusing to fight for a government of which Smith is a 
J member " ; and the Irish World for expressing the expecta- 
tion that Palestine would not be a Jewish kingdom, but on 
j the same footing as Egypt, and that the trend of French 
/' life and ideals for a century has been toward mate- 
rialism. And finally, Thorstein Veblen's Imperial Germany 
and the Industrial Revolution^ which was published in 1915, 
was recommended by Mr. Creel's Committee on Public In- 
1 formation as containing damaging data about Germany, and 
then excluded by Mr. Burleson from the mails. 

This is clearly previous restraint and might seem for- 
bidden by the Blackstonian definition, which, however, is held 
not to apply to the postal power.^°° This power, like the 
war power, ought to be subject to the requirements of free 
speech and due process of law, and there are dicta of the 
Supreme Court that it is not unlimited.^''^ Although the 
post-office may not be strictly a common carrier,^"'^ it is in 
the nature of a public service company. Its functions have 

89 O'Brian, 292. 

100 Masses Pub. Co, v. Patten, 246 Fed. 24, 27 (1917), Rogers, J. 
The operation of our postal censorship is shown by material cited in 
the Bibliography. The cases are at the end of Appendix II. See also 
the Trading with the Enemy Act for regulation of the foreign language 
press. U. S. Comp. Stat. 'l918, §31151/2 j. 

101 77.r parte Jackson, 96 U. S. 727 (1877); Public Clearing House 
V. Coyne, 194 U. S. 497, 507 (1904). 

102 Masses Pub. Co. v. Patten, 245 Fed. 102, 106 (1917), Hough, J. 



THE WAR WITH GERMANY 109 

been performed by private persons in the past, and if it were 
not unlawful, would probably be shared by them now because 
of the greater speed possible. ^°^ According to the political 
theories of Leon Duguit,^*^* the government in furnishing 
public service must be judged by ordinary standards of pub- 
lic callings. If the United States owned the railroads, it 
ought not to make unreasonable discrimination among pas- 
sengers any more than a private railroad corporation, and 
a similar limitation should apply to the postal power. The 
congressional restrictions which have been upheld by the 
courts may be considered as reasonable regulations in view 
of the nature of the service. Even opposition to the gov- 
ernment may be entitled to some consideration by the post- 
office as by the judges, who frequently decide against the 
United States. It is clear that exclusion from the mails 
practically destroys the circulation of a book or periodical, 
and makes free speech to that extent impossible. To say, 
as many courts do, that the agitator is still at liberty to 
use the express or the telegraph,^"^ recalls the remark of 
the Bourbon princess when the Paris mob shouted for bread, 
" Why don't they eat cake.? " 

Still another method of suppression of opinion has been 
used. Not only have we substantially revived the Sedition 
Act of 1798, but the Alien Act as well. Aliens have been 
freely deported under statutes passed during the war, to 
be discussed in a later chapter, and even naturalized citizens 
or native American women marrying foreigners are within 
the reach of this power. A former German subject who was 
naturalized in 1882 refused in 1917 to contribute to the 
Red Cross and the Young Men's Christian Association be- 

103 Something like this happened when the Western Union Tele- 
graph Co. recently tried to carry "night-letters" by messengers on 
trains. 

104 Law in the Modern State, translated by F, and H. Laski, N. Y., 
1919. See H. J. Laski in 31 Harv. L. Rev. 186; and his Authority in 
the Modern State, p. 378. 

105 This alternative is even less valuable when the government con- 
trols the express and the telegraph. The New York World was denied 
the opportunity to use the telegraph to distribute a criticism of Mr. 
Burieson. Collier's Weekbj, May 17, 1919, p. 16. 



110 FREEDOM OF SPEECH 

cause he would do nothing to injure the country where he 
was brought up and educated. His naturalization certificate 
was revoked after thirty-five years on the presumption that 
his recent conduct showed that he took the oath of renuncia- 
tion in 1882 with a mental reservation as to the country of 
his birth. He may therefore be deported as an enemy alien.^*^^ 

Vn. State Espionage Acts 

Him that escapeth the sword of Hazael shall Jehu slay. — The 
First Book of Kings. 

One would have supposed that the federal Espionage Act 
was a sufficient safeguard against opposition to the war, 
but many states were not satisfied with either its terms or 
its enforcement, and enacted similar but more drastic laws 
of their own.^°'^ These were particularly common in western 
states, where feeling ran high against the Non-Partisan 
League or the I.W.W. The most important of these stat- 
utes, that of Minnesota, made it unlawful to say " that 
men should not enlist in the military or naval forces of 
the United States or the State of Minnesota," or that resi- 
dents of that state should not aid the United States in car- 
rying on war with the public enemies. ^°^ There have been 

"" 106 United States v. Wursterbarth, 249 Fed. 908 (N. J., 1918), Haight, 
J.; see also United States v. Darmer, 219 Fed. 989 (W. D. Wash., 1918), 
Cushman, J.; U. S. v. Kramer, 262 Fed. 395 (C. C. A., 5th, 1919); Schur- 
mann v. U. S., 264 Fed. 917 (C. C. A., 9th, 1920). 

107 These statutes and the decisions under them are collected in 
Appendix V. Other state cases arising' out of war utterances are; 
Breaches of the peace : People v. Nesin, 179 N. Y. App. Div. 869 
(1917); People v. Whitaker (Cal.), Nelles, p. 53; War-time Prosecur' 
tions, p. 27. 

Municipal Ordinance regulating newspapers invalid: Star v. Brush, 
170 N. Y. Supp. 987 (1918); 172 N. Y. Supp. 851 (1918); New Yorker 
Staats-Zeitung t\ Nolan, 105 Atl. 72 (N. J., 1918). Conspiracy to compel 
neivsdealer to handle distasteful newspaper : Sultan v. Star Co., 174 N. Y. 
Supp. 52 (1919). Ordinance prohibiting German opera: Star Opera Co. 
V. Hylan, 109 N. Y. Misc. 132 (1919). Libel in war controversy : Van 
Lonkhuyzen v. Daily News, 195 Mich. 283, 161 N. W. 979 (1917), 170 
N. W. 98 (1918). Expulsion of college student for pacifism: not re- 
viewed, Samson v. Columbia, 101 N. Y. Misc. 146, 167 N. Y. Supp. 202 
(1917). 

108 Minn. Laws, 1917, c. 463. This was superseded in 1919 by a 



THE WAR WITH GERMANY 111 

a very large number of prosecutions and many convictions 
under this statute, chiefly of members of the Non-Partisan 
League, culminating in the condemnation of its president. 

Although these statutes have been held in several cases ^°^ 
to punish crimes within the jurisdiction of the states, it 
seems possible that the offenses named are, unless mere 
breaches of the peace, crimes against the United States, and 
therefore cognizable only in the federal courts. Of course, 
the same act may be both a federal and a state crime, for 
instance, counterfeiting, which injures United States money 
and is also a kind of cheating. Consequently, it is urged in 
support of these sedition statutes, that a violation of the 
Espionage Act is also a breach of the duty of citizens of a 
state to assist that state in performing its duty to support 
the nation in war, and that sedition, although directly 
aimed at the federal government, must indirectly aifect 
the security of the state government. On the other hand, 
it has been held that treason against the United States can- 
not be prosecuted by the states ^^° and interference with the 
federal war power is closely analogous. The argument that 
there is also interference with the states is open to question. 
They have no war powers ; their control over the militia in 
so far as that was affected by any of the utterances prose- 
cuted was taken out of their hands during the war; and 
although the state officers did render aid in the raising of 
troops, that does not make it a state function, any more 
than the assistance of a policeman in the arrest of a deserter 
renders him amenable to state law. The control was entirely 
in the hands of the federal government. 

still more drastic act, to take care of future wars. Laws, 1919, c. 
93. See cases in Appendix V and Bibliography on Townley Trial. 

109 State V. Holm, 139 Minn. 267 (1918); State v. Tachin, 106 Atl. 
145, 108 Atl. 318, two JJ. dissenting (N. J., 1919); State v. Gibson, 174 
N. W. 34 (la. 1919). But see Ex parte Meckel, 220 S. W. 81 (Tex. 1920), 
the only case holding a sedition statute unconstitutional. 

110 People V. Lynch, 11 Johns. (N. Y.) 549 (1814); Ex parte Quar- 
rier, 2 W. Va. 5^9 (1866). The National Guard, when called into the 
service of the L^nited States, were discharged from the state militia, 
U. S. Comp. Stat. 1918, § 2044a; S. T. Ansell, "Status of State Militia 
under the Hay Bill," 30 Harv. Law Rev. 712. 



112 FREEDOM OF SPEECH 

Even though the crime be not held exclusively within the 
jurisdiction of the United States, still this seems like one 
of those cases where the state government has at the most 
a power concurrent with that of Congress, which must cease 
to operate when Congress has determined the proper laws 
to apply to the subject-matter. For example, a state would 
have power to grant immunity from civil suits to persons 
in mihtary service so long as there was no federal law on 
the subject, but when Congress passed the Soldiers' and 
Sailors' Civil Relief Act, a state law giving a less or a 
greater degree of protection became thereby invalid.^^^ The 
same principle applies to regulations as to interference with 
the raising of armies. 

For there can be no doubt that state acts like that in 
Minnesota conflict very seriously with the enforcement of 
the federal statute, so as to render the state legislation ex- 
tremely undesirable even if not unconstitutional. If a man 
deserves to be prosecuted for his anti-war activities it is fair 
to presume that the Department of Justice will have him 
indicted under the ample provisions of the Espionage Act, 
and it is important that the control of proceedings should 
be in the hands of the Department, without parallel prosecu- 
tions by independent state officials. On the other hand, if 
Congress and the federal officials think it wise to allow much 
discussion of war aims and economic aspects, it is very un- 
fortunate that their policy should be hampered by bitter 
prosecutions based on an entirely different policy and grow- 
ing out of local hysteria or directed against opinions which 
are objectionable to influential political or economic groups 
in the state. Mr. O'Brian contrasts the federal policy of 
restraint against members of the Non-Partisan League and 
adherence to the fundamental principle that guilt is per- 
sonal and that no class of individuals will be proscribed 

111 Konkel v. State, 168 Wis. 335 (1919), with a very full discussion; 
see State v. Darwin, 102 Wash. 402 (1918). Cf. Halter v. Nebraska, 205 
U. S. 34 (1907); Houston v. Moore, 5 Wheat. 1 (1820). The dissenting 
opinions in S. v. Tachin, 108 Atl. 318, make the same point and also 
attack the N. J. statute as a violation of freedom of speech. 



THE WAR WITH GERMANY 113 

as a class, with the sweeping and severe action of Min- 
nesota : ^^" 

The result of its adoption increased discontent and the most 
serious cases of alleged interference with civil liberty were re- 
ported to the federal government from that state. Our view was 
that, while cases of individual guilt must be prosecuted with 
severitj'^, class movements cannot be controlled or molded by 
indictments. Arbitrary repression or interference often adds to 
their dynamic force. But unfortunately the constructive teach- 
ings and arguments of persuasion necessary to deal with move- 
ments of this character were not at any time in evidence in 
these disturbed districts of the country. 

If hostilities had continued for another year, these local 
statutes might have produced an alarming effect upon the 
output of the grain-producing states by breeding a sup- 
pressed but no less active hatred of the war in the Non- 
partisan League, and might also in jailing members of the 
I.W.W., whom the Department of Justice was leaving alone, 
have blocked the conciliatory work of Colonel Disque in the 
spruce forests and of other federal agents in the copper 
regions.^^^ 

VIII. Reflections During a Technical State of War 

I do not speak of what is past and gone; but in case of a 
future war what results will follow from your decision indorsing 
the Attorney General's views? — Jeremiah Black, arguing in 
Ex parte MiUigan, 2 Wall. 78. 

The Espionage Act of 1917, as interpreted by the Su- 
preme Court, suppresses free speech for all opponents of a 
war, but allows militant newspapers and politicians to block, 
by unbounded abuse, the efforts of the President to end a 
war by a just settlement. Congress reached the same result 
by the 1918 Act, making it criminal to " oppose the cause 
of the United States " in any war. 

112 O'Brian, 296. 

113 0'Brian, 299; Report to the President of the President's Media- 
tion Commission. For a very harsh case of a ten-year sentence for the 
victim of a flag-kissing mob, Ex parte Starr, 263 Fed. 145 (1920). 



114 FREEDOM OF SPEECH 

The Espionage Act of 1918 is not limited to this war. 
The pacifists and Sociahsts were, I believe, wrong about that, 
but they may be right next time. They might have been 
right a few months ago had we been drawn into war with 
Mexico as carelessly as England was drawn into the war 
with Spain over Jenkins' ear. Balance military necessity in 
such a case against the harm of suppressing truth by a ten- 
year sentence. The government can argue better than its 
opponents, if it has any case at all, and at its back are 
public opinion, the press, the police, the army, to prevent 
their words from causing unlawful acts. And while na- 
tional welfare doubtless demands that a just war be pushed 
to victory, it also demands that an unjust war be stopped. 
The only way to find out whether a war is unjust is to let 
people say so. 

The 1918 clauses punishing attacks on the Constitution 
and our form of government raise still stronger objections. 
They have nothing to do with war. They may be used 
during some petty struggle with Haiti to arrest and im- 
prison for twenty years an excitable advocate of the repeal 
of the Eighteenth Amendment or the abolition of the Senate. 
If there was one thing which the First Amendment was 
meant by our ancestors to protect, it was criticism of the 
existing form of government and advocacy of change, the 
kind of criticism which George Ill's judges punished. Even 
if the Act permits temperate discussion, which is doubtful, 
in view of the words about causing " contempt ... or 
disrepute," it still abridges free speech, for the greater the 
need of change, the greater the likelihood that agitators 
will lose their temper over the present situation. It is im- 
possible to speak respectfully of that portion of our Con- 
stitution and form of government which is represented by the 
electoral college, and much hatred has justly been directed to 
the clause for the return of fugitive slaves. Other parts may 
prove equally objectionable in the course of years. Par- 
ticularly dangerous are the 1918 clauses about defamation of 
the army and navy. They would surely be invoked by advo- 



THE WAR WITH GERMANY 115 

cates of compulsory military service against their opponents, 
if they wished to take advantage of any hostilities to fasten 
conscription upon the nation as a continuous policy. They 
make any scathing criticism of military methods a very 
perilous matter in future wars even for the most loyal and 
eminent civilians (no intent to favor the enemy being re- 
quired by the statute), and raise the army and navy into 
a privileged position beyond the range of ordinary out- 
spoken discussion, such as is enjoyed by no civilians. This is 
what the French army wanted during the Dreyfus affair, 
and a petty war will suffice to give it. Furthermore, if the 
language used does bring the army or navy into contempt, 
it is absolutely immaterial that the charge made is true. 

That these predictions of what will happen in a petty war 
are by no means exaggerated is proved by what has been 
done under the Espionage Act in a time when there is no 
war at all — except by a legal fiction. First, the Attorney 
General, a year after the armistice, raided and closed the 
office of the Seattle Union-Record, because it urged the 
workers to kick the governing class into the discard at the 
next election, and said that the Centralia shootings were the 
culmination of a long series of illegal acts by ex-service men, 
pleading for law and order by rich and poor alike. ^" Sec- 
ondly, thirteen months after the armistice, Mr. Burleson 
still kept the New York Call from the mails, and announced 
to the Supreme Court of the District of Columbia that in 
view of the facts, his exercise of judgment was " not subject 
to be reviewed, reversed, set aside, or controlled by a court 
of law." ^^^ Thirdly, fourteen months after all fighting had 
stopped three men were tried in Syracuse for distributing 

114 Anna Louise Strong, " A Newspaper Confiscated — and Returned," 
109 Nation 738 (Dec. 13, 1919). Indictments of the editors for items 
published during the year after the armistice were quashed in U. S. v. 
Strong, 263 Fed. 789 ;"U. S. v. Listman, ibid. 798; U. S, v. Ault, i6id. 800. 
For the other side, see Ole Hanson, Americanism versus Bolshevism, 
N. Y., 1920. 

115 United States of America ex rel. The Workingmen's Co-operative 
Publishing Association v. Burleson, Supreme Court, Dist. Col., Oct. 
Term, 1919, Law No, 63134. Answer of Respondent. 



116 FREEDOM OF SPEECH 

circulars in the autumn of 1919, describing ill-treatment of 
political prisoners, calling an amnesty meeting, and request- 
ing that letters be written to the President and members of 
Congress. The leaflets quoted the First Amendment, Ex 
parte Milligan, and a speech by President Wilson. The 
defendants were convicted and sentenced to eighteen months 
in prison for disloyal language about our form of govern- 
ment and the military forces, language designed to bring 
them and the Constitution into contempt, inciting resistance 
to the United States, and obstruction of recruiting.^^® 

The Supreme Court has never passed squarely on these 
sections of the Espionage Act of 1918, though some of them 
were involved in the Abrams case, and it is to be hoped that 
they will be declared unconstitutional. It would be better 
yet if they and the whole of section 3 were repealed. 

Whatever be decided as to constitutionality, the Es- 
pionage Act prosecutions break with a great tradition in 
English and American law. Only once before has the United 
States tried to punish political crimes, and the Sedition Act 
of 1798 with its maximum of two years' imprisonment 
wrecked the Federalist party. The Mexican War produced 
the Biglow Papers, and every stanza in the opening poem 
would have violated a separate clause of the Espionage Act 
of 1918, if the slaveholders had drafted such a statute. We 
fought the Civil War with the enemy at our gates and pow- 
erful secret societies in our midst without an Espionage 
Act. 

When the disloyal press was curbed by Burnside and 
his subordinates, they received sharp telegrams of revoca- 
tion from Lincoln. The irritation produced by such acts 
was in his opinion " likely to do more harm than the publica- 
tion would do." ^^'' Undoubtedly he permitted a very large 
number of arbitrary arrests by Seward and Stanton, or 

lie 21 New Republic 302 (Feb. 11, 1920) ; " Bringing the Constitution 
into Disrepute," 21 ibid. 330 (Feb. 18, 1920). U. S. v. Steene, 263 
Fed. 130. 

"'J. F. Rhodes, History of the United States, III, 553; IV, 223-253, 
267 note, 467, 473; VI, 78, 96. For Lincoln's refusal to allow General 



THE WAR WITH GERMANY 117 

under martial law in the border states. " Must I shoot 
a simple soldier boy who deserts, while I must not touch a 
hair of a wily agitator who induces him to desert? " But 
Lincoln's policy, apart from all questions of its legahty, was 
very different in nature from most of the Espionage Act 
prosecutions and sentences. He was proceeding against 
men who were so far within the test of direct and danger- 
ous interference with the war that they were actually 
causing desertions, and even then he acted to prevent and 
not to punish. Vallandigham was sent through into 
the Confederate lines, and left unmolested on his return. 
Lincoln would not have allowed an old man, a Presiden- 
tial opponent and the choice of nine hundred thousand 
American citizens, to lie in prison for sincere and harmless, 
even though misguided, words, over a year after the last 
gun was fired. 

If the North was a dictatorship, says Rhodes, the South 
was a socialized state, which was much closer to the situation 
of all the countries engaged in the World War. There the 
newspapers were probably under closer control, but there 
were no prosecutions. 

And so in England. Bright and Cobden in the Crimean 
War, Morley and Lloyd George in the Boer War, were un- 

Burnside and his subordinates to suppress the Chicago Times and other 
newspapers of Copperhead tendencies in Illinois, Indiana, and Ohio, see 
also Official Record of the Rebellion, Series II, Vol. V, 723, 741; Series 
III, Vol. Ill, 252. On number of arrests, Rhodes, IV, 230 note; Lincoln's 
Proclamation suspending habeas corpus for " aiders or abettors of the 
enemy," 13 Stat, at L. 734. 

The case of Ex parte Vallandigham, 1 Wall. (U. 8.) 243 (1863), is 
sometimes supposed to support the unlimited exercise of the war power 
to restrict speech. See Ambrose Tighe in 3 Minn. L. Rev. 1 (1918). 
The decision merely holds that the writ of certiorari does not lie to a 
military tribunal. Nothing is said as to the existence of some other 
remedy such as habeas corpus, or an action for false Imprisonment. 
Ex parte Vallandigham, 28 Fed. Cas. 874 (1863), lends support to Mr. 
Tighe. The treatment of Vallandigham is considered illegal by Rhodes, 
op. cit., IV, 245-252, and would seem so under Ex parte Milligan. On 
the South, Rhodes, V, 473, is contradicted by Edward A. Pollard, Jef- 
ferson Davis, p. 316. As late as May 19, 1864, a resolution was intro- 
duced in the Confederate Congress to inquire if legislation was neces- 
sary to prevent press disclosures of military information. 4 Journ. 
C. S. A. Cong., p. 60. 



118 FREEDOM OF SPEECH 

touched. Even in this war, while the terms of the De- 
fense of the Realm Act are more sweeping than our statute, 
the administration has been less severe. Those who enforced 
it have allowed a wide range of discussion and imposed brief 
sentences, though they sat within sound of the German guns. 
And of all the nations at war, we alone, three thousand 
miles from the conflict, still refuse a general amnesty to 
political prisoners.^^^ 

Undoubtedly some utterances had to be suppressed. We 
have passed through a period of danger, and have reason- 
ably supposed the danger to be greater than it actually was, 
but the prosecutions in Great Britain during a similar period 
of peril in the French Revolution have not since been re- 
garded with pride. Action in proportion to the emergency 
was justified, but we have censored and punished speech 
which was very far from direct and dangerous interference 
with the conduct of the war. The chief responsibility for 
this must rest, not upon Congress which was content for 
a long period with the moderate language of the Espionage 
Act of 1917, but upon the officials of the Department of 
Justice and the Post-office, who turned that statute into a 
drag-net for pacifists, and upon the judges who upheld and 
approved this distortion of law. It may be questioned too, 
how much has actually been gained. Men have been impris- 
oned, but their words have not ceased to spread.^^® The 
poetry in the Masses was excluded from the mails only to 
be given a far wider circulation in two issues of the Federal 
Reporter. The mere publication of Mrs. Stokes' statement 
in the Kansas City Star, " I am for the people and the Gov- 

118 This was granted in Italy on November 19, 1918, before the 
signing of peace and in Germany before the armistice. The French 
amnesty was October 24, 1919. Sentences under the British Defense 
of the Realm Act have all expired, being very short; the longest, three 
years, was commuted to one year. This note comprises only seditious 
utterances in the war, not treasonable acts like the Bonnet Rouge affair 
or Irish convictions since the armistice. 

119 Cf. a similar experience of the Emperor Tiberius: Tacitus, Annals, 
IV, c. 35: " Punitis ingeniis, gliscit auctoritas." "A man who preaches 
in the stocks will always have hearers enough." — Dr. Johnson. 



THE WAR WITH GERMANY 119 

ernment is for the profiteers," was considered so dangerous 
to the morale of the training camps that she was sentenced 
to ten years in prison, and yet it was repeated by every 
important newspaper in the country during the trial. There 
is an unconscious irony in all suppression. It lurks behind 
Judge Hough's comparison of the Masses to the Beati- 
tudes,^^*' and in the words of Lord Justice Scrutton during 
this struggle against autocracy : " It had been said that a 
war could not be conducted on the principles of the Sermon 
on the Mount. It might also be said that a war could 
not be carried on according to the principles of Magna 
Charta." '-^ 

Those who gave their lives for freedom would be the last 
to thank us for throwing aside so lightly the great tradi- 
tions of our race. Not satisfied to have justice and almost 
all the people with our cause, we insisted on an artificial 
unanimity of opinion behind the war. Keen intellectual grasp 
of the President's aims by the nation at large was very dif- 
ficult when the opponents of his idealism ranged unchecked 
while the men who urged greater idealism went to prison. 
In our efforts to silence those who advocated peace without 
victory we prevented at the very start that vigorous thresh- 
ing out of fundamentals which might to-day have saved us 
from a victory without peace. 

120 See page 55, supra. 

121 Ronnfeldt v. Phillips, 35 T. L. R. 46 (1918, C. A.). 



CHAPTER III 

A CONTEMPORARY STATE TRIAL— THE UNITED 
STATES VS. JACOB ABRAMS ET AL. 

In this case sentences of twenty years imprisonment have 
been imposed for the publishing of two leaflets that I believe the 
defendants had as much right to publish as the Government has 
to publish the Constitution of the United States now vainly 
invoked by them. — Justice Holmes. 

Shortly before eight o'clock, on the morning of August 
23, 1918,^ several men and boys were loitering at the corner 
of Houston and Crosby streets, in New York City, perched 
on sprinkler hydrants or standing about in talk, while they 
waited for the day's work to begin in the manufacturing 
building close by. One or two happened to look up and 
saw something being thrown from a window above and fall- 
ing — the air was full of leaflets. Nothing of the kind had 
ever happened there before, and the workmen picked the 
papers up curiously from sidewalk and gutter. Some circu- 
lars in Yiddish they could not make head or tail of, but 
they read together others in English, which attacked the 
recent despatch of troops to Russia. 

There has been so much misapprehension about the word- 
ing of these two leaflets that their text ought to be given in 
fuU.^ That in English was as follows: 

THE 

HYPOCRISY 

OF THE 

UNITED STATES 

AND HER ALLIES 

" Our " President Wilson, with his beautiful phraseology, has 
hypnotized the people of America to such an extent that they do 
not see his hypocrisy. 

1 The sources for this case are in the Bibliography. 

2 The English pamphlet is Government's Exhibit No. 1, Record, p. 

120 



A CONTEMPORARY STATE TRIAL 121 

Know, you people of America, that a frank enemy is always 
preferable to a concealed friend. When we say the people of 
America, we do not mean the few Kaisers of America, we mean the 
" People of America." You people of America were deceived by 
the wonderful speeches of the masked President Wilson. His 
shameful, cowardly silence about the intervention in Russia reveals 
the hypocrisy of the plutocratic gang in Washington and vicinity. 

The President was afraid to announce to the American people 
the intervention in Russia. He is too much of a coward to 
come out openly and say: " We capitalistic nations cannot afford 
to have a proletarian republic in Russia." Instead, he uttered 
beautiful phrases about Russia, which, as you see, he did not 
mean, and secretly, cowardly, sent troops to crush the Russian 
Revolution. Do you see how German militarism combined with 
allied capitalism to crush the russian revolution? 

This is not new. The tyrants of the world fight each other 
until they see a common enemy — working class — enliqhtment 
as soon as they find a common enemy, they combine to crush it. 

In 1815 monarchic nations combined under the name of the 
" Holy Alliance " to crush the French Revolution. Now mili- 
tarism and capitalism combined, though not openly, to crush the 
russian revolution. 

What have you to say about it.'' 

Will you allow the Russian Revolution to be crushed? You: 
Yes, we mean you the people of America ! 

The Russian Revolution calls to the workers of the 
world for help. 

The Russian Revolution cries: "Workers of the world! 
Awake ! Rise ! Put down your enemy and mine ! " 

Yes friends, there is only one enemy of the workers of the 
world and that is Capitalism. 

It is a crime, that workers of America, workers of Germany, 
workers of Japan, etc., to fight the Workers* Republic op 
Russia. 

Awake ! Awake, You 

Workers of the World ! 

Revolutionists 

P. S. It is absurd to call us pro-German. We hate and 
despise German militarism more than do your hypocritical ty- 
rants. We have more reasons for denouncing German militarism 
than has the coward of the White House. 

245. Errors of punctuation, etc., are preserved. The translation of the 
Yiddish pamphlet is Government's Exhibit No. 2, Record, p. 247. Both 
measure 12xil^ inches, one page, printed on one side. 



122 FREEDOM OF SPEECH 

The Yiddish leaflet has been translated. This trans- 
lation was accepted as correct by the government and the 
defense. Abrams, however, suggested a few changes during 
his testimony. It would be interesting to know how much 
stronger the Yiddish equivalent for " murder " at the end 
of the fourth paragraph is than the word for " kill." 

Workers — Wake Up. 

The preparatory work for Russia's emancipation is brought to 
an end by his Majesty, Mr. Wilson, and the rest of the gang; 
dogs of all colors ! 

America, together with the Allies, will march to Russia, not, 
" God Forbid," to interfere with the Russian affairs, but to 
help the Czecho-Slovaks in their struggle against the Bolsheviki. 

Oh, ugly hypocrites ; this time they shall not succeed in fooling 
the Russian emigrants and the friends of Russia in America. Too 
visible is their audacious move. 

Workers, Russian emigrants, you who had the least belief in the 
honesty of our government must now throw away all confidence, 
must spit in the face the false, hypocritic, military propaganda 
which has fooled you so relentlessly, calling forth your sympathy, 
your help, to the prosecution of the war. With the money which 
you have loaned or are going to loan them, they will make bullets 
not only for the Germans but also for the Workers Soviets of 
Russia. Workers in the ammunition factories, you are producing 
bullets, bayonets, cannon, to murder not only the Germans, but 
also your dearest, best, who are in Russia and are fighting for 
freedom. 

You who emigrated from Russia, you who are friends of Russia, 
will you carry on your conscience in cold blood the shame spot 
as a helper to choke the Workers Soviets. Will you give your 
consent to the inquisitionary expedition to Russia? Will you be 
calm spectators to the fleecing blood from the hearts of the best 
sons of Russia? 

America and her Allies have betrayed (the workers). Their 
robberish aims are clear to all men. The destruction of the 
Russian Revolution, that is the politics of the march to Russia. 

Workers, our reply to the barbaric intervention has to be a 
general strike! An open challenge only will let the government 
know that not only the Russian Worker fights for freedom, but 
also here in America lives the spirit of revolution. 

Do not let the government scare you with their wild punishment 



A CONTEMPORARY STATE TRIAL 123 

in prisons, hanging and shooting. We must not and will not 
betray the splendid fighters of Russia. Workers, up to fight. 

Three hundred years had the Romanoff dynasty taught us how 
to fight. Let all rulers remember this, from the smallest to the 
biggest despot, that the hand of the revolution will not shiver 
in a fight. 

Woe unto those who will be in the way of progress. Let 
solidarity live ! the rebels. 



The Military Intelligence Police were notified, and sent 
two army sergeants, who climbed from floor to floor of the 
manufacturing building asking questions, until aj; a hat fac- 
tory on the fourth story they arrested Rosansky, a young 
Russian, who eventually confessed that he had thrown out 
the circulars. Three men whom he had met at an anarchistic 
meeting a fortnight previously had handed him a package 
of leaflets the night before, and asked him to toss them 
from some window where people were passing. As he had 
a rendezvous with the same men that night, the Military 
Police with his aid captured six other Russians, — five men 
and a girl. The oldest man, Abrams, was twenty-nine, the 
youngest, Lipman, twenty-one, the same age as the girl, 
Molly Steimer. The sergeants went with some of the pris- 
oners to their lodgings, three flights up a rear staircase on 
East 104th Street. It was an apartment of six rooms, — 
a front room with a table and some books, a cot, and a 
bookstand ; two bedrooms, in one a bed, in the other a mat- 
tress on the floor ; a dining-room so-called which had a 
catercorncred closet containing a lot of books and papers 
and in the center large boxes like packing-boxes, used ap- 
parently for desks, and also some chairs and a long couch ; 
a room that could be called a kitchen because it had a sink; 
and a rear room used by MoUy Steimer, just a chair and 
some women's clothes hanging on the door. Such was the 
headquarters of the great conspiracy. 

Shortly after midnight, Thomas J. Tunney, the Police 
Inspector who had questioned Rosansky in the morning, and 
author of Throttled, a book on bomb-plotters, examined the 



124 FREEDOM OF SPEECH 

prisoners in the presence of several army sergeants, and ob- 
tained statements which were taken down stenographically. 
The prisoners refused to tell where the pamphlets were 
printed, but some of the sergeants, after finding a bill for 
a printing press and materials in Abrams' papers, learned 
from the seller that they had been sold to Abrams about 
July 15, partly on a chattel mortgage, and had been de- 
livered at the basement of 1582 Madison Avenue. The 
Military Police entered the basement with a search warrant 
and discovered a motor driven press and a small hand press, 
bundles of blank paper of the same size as the English and 
Yiddish pamphlets, and English and Hebrew type of the 
style used in them. The side door of the basement had been 
broken in, plates and type were thrown on the chairs, torn 
pieces of both pamphlets had been set on fire in a pail and 
partly burned. Misprinted pamphlets and corrected proof 
lay crumpled upon the floor. Further investigation showed 
that Abrams had rented the basement from the janitress 
in mid-July for eight dollars a month, and that she had 
seen him and Lachowsky, another prisoner, working there 
together. 

The prisoners, one of whom, Schwartz, died before trial, 
were indicted for conspiracy to violate four clauses of the 
Espionage Act of 1918.^ The case promised to be deci- 
sive for two reasons. It was the only important prosecu- 
tion for the new crimes created by the Espionage Act of 
1918, although one such crime had been incidentally involved 
in the Debs trial. Consequently, the construction and con- 
stitutionality of this Sedition Act of 1918 would very prob- 
ably be called in question. In the second place, the defend- 
ants were not prosecuted for pacifist or pro-German utter- 
ances, as in the general run of Espionage Act cases, but for 
agitation against the government's Russian policy. The 
Department of Justice had prevented several other prosecu- 

3 The conspiracy section of the Espionage Act is Act of June 15, 
1917, c. 30, Title I, §4; U. S. Comp. Stat., 1918, § 10212d, §3 and the 
cases thereunder are in Appendix III. See page i*, supra. 



A CONTEMPORARY STATE TRIAL 125 

tlons of so-called Bolshevists for opposition to that policy, 
since no war had been declared against Russia. For 
example, no trial was ever held upon an indictment con- 
temporaneous with that against the Abrams group which 
was presented in New York against Abraham Shiplacoff for 
a speech at a Socialist meeting, in which he compared the 
attitude of the Russian toward the American troops to the 
sentiments of our rc/olutionary patriots toward those " hired 
murderers," the Hessians. The appeal of the Abrams 
group to munition workers for a general strike was, how- 
ever, regarded as more serious, and since the prosecution 
had got under way before the Department of Justice learned 
of it, it was allowed to proceed.* 

I. The District Court 

The trial of Abrams and his associates, except Schwartz, 
began on October 10, 1918, in the United States Court 
House in New York City before Judge Clayton of the North- 
ern and Middle Districts of Alaoama. Henry De Lamar 
Clayton was then sixty-one years of age. Belonging to a 
distinguished Alabama family he had graduated from the 
State University and practised law in Montgomery. For 
eighteen years he represented Alabama in Congress, serving 
eventually as Chairman of the Judiciary Committee of the 
House and giving his name to the well-known Clayton Act. 
In 1914 he was appointed to the United States bench. This 
was his first prominent Espionage Act case. 

There were in the Southern District of New York three 
judges with extensive experience in the difficulties of war 
legislation. Judge Learned Hand had heard the equity suit 
of the Masses to obtain admission to the mails, and the 
demurrer of Scott Nearing. Judge Julius M. Mayer had 
sat on the Circuit Court of Appeals which reversed Judge 
Hand's decision in the Masses case, and had also tried 

4 Testimony of Alfred Bettman, Hearings before the Committee 
on Rules, 12Q.—N. Y. Times, Sept. 24, 1918. 



126 FREEDOM OF SPEECH 

Goldman and Phillips for opposing the draft. Judge 
Augustus N. Hand had presided at the trial of Max East- 
man. If two corporations were litigating the validity of an 
important patent, they would be surprised to have the 
matter heard by a judge who had little experience in patent 
cases, especially if three judges trained in similar contests 
were available. In the Abrams trail, six persons risked the 
best part of their lives upon the decision of the perplexing 
problems of freedom of speech. The position of the defend- 
ants could hardly be understood without some acquaintance 
with the immigrant population of a great city, some knowl- 
edge of the ardent thirst of the East Side Jew for the 
discussion of international affairs. Yet because the New 
York dockets were crowded the Abrams case was assigned to 
a judge who had tried no important Espionage Act case, who 
was called in from a remote district where people were of 
one mind about the war, where the working class is more con- 
spicuous for a submissive respect for law and order than for 
the criticism of high officials, where Russians are scarce and 
Bolshevists unknown. 

The government was represented by Francis G. Caf- 
fey. United States Attorney, with John M. Ryan and S. L. 
Miller, Assistant United States Attorneys, of counsel. 
Harry Weinberger of New York appeared for the defend- 
ants. The jury was duly empaneled and sworn on Monday, 
October 14, and the trial ended on Wednesday, October 23. 

The overt acts were proved without contradiction. Soon 
after United States troops were sent to Vladivostok, the 
group had begun meeting in the bare " third floor-back " 
on East 104th Street, where most of them lived, and de- 
cided to protest against the attack on the Russian Revolu- 
tions, with which as anarchists or Socialists they strongly 
sympathized. Schwartz, the dead prisoner, had written 
the Yiddish circular, and Lipman the English. Abrams, 
the oldest, bought the press. After printing five thousand 
copies of each circular he stopped for lack of funds. La- 
chowsky and Molly Steimer had distributed about nine 



A CONTEMPORARY STATE TRIAL 127 

thousand pamphlets, throwing them in the streets where 
there were the most working-people or passing them around 
at radical meetings. Rosansky's aid had been secured just 
before the arrests. There was no evidence that one person 
was led to stop any kind of war work, or even that the 
pamphlets reached a single munition worker. 

The defense, besides contending that the Espionage Act 
was unconstitutional, maintained that it was not violated, 
and in particular that the criminal intent required by the 
express terms of the statute did not exist. Each count of 
the indictment ^ covered a conspiracy to violate one clause 
of the Act, as follows, according to the language of the 
statute. Certain phrases in the indictment which are not 
in the Act are enclosed in brackets. 

Whoever, when the United States is at war, . . . shall 
willfully utter, print, write, or publish 

(Count 1) any disloyal, . . . scurrilous, or abusive language 
about the form of government of the United States, . . . 

(Count 2) or any language intended to bring the form of 
government of the United States . . . into contempt, scorn, 
contumely, or disrepute, . . . 

(Count 3) or . . . any language intended to incite, provoke, 
or encourage resistance to the United States [in said war with 
the German Imperial Government], . . . 

(Count 4) or shall willfully by utterance, writing, printing, 
publication, . . . urge, incite, or advocate any curtailment of 
production in this country of any thing or things, product or 
products [to wit, ordnance and ammunition] necessary or essential 
to the prosecution of the war in which the United States may be 
engaged, [to wit, said war with the Imperial German Govern- 
ment], with intent by such curtailment to cripple or hinder the 
United States in the prosecution of the war, . . . 

shall be punished by a fine of not more than $10,000 or im- 
prisonment for not more than twenty years or both. 

As to the first crime charged, the publication of " dis- 
loyal, . . . scurrilous, or abusive language " about our form 
of government, the Espionage Act by its terms punishes the 

5 The indictment is in Record, 2-19. 



128 FREEDOM OF SPEECH 

act of publication, without any mention of intent. Although 
some district judges have considered that there must be an 
evil or wicked intention,"^ it has been contended with much 
force and on high authority ^ that the utterance of the 
words is in itself criminal regardless of the state of mind. 
On this view, all that is necessary is intention to publish. 
There need be no intention to be abusive or disloyal about 
the form of government. If so, the Espionage Act is in 
this respect much more rigorous than the Sedition Act of 
1798, which created the crime of " publishing any false, 
scandalous and malicious writing against the government," 
but required intent to defame it or excite against it the 
hatred of the people or stir up sedition. Also the penalty 
was only two years' imprisonment, and truth was a defense 
under that Act, whereas now a statement in real or technical 
war time of the soundest truths about our form of govern- 
ment is punishable by twenty years in prison if only those 
truths are sufficiently damaging to be considered abusive 
or disloyal. 

However this may be, intention to injure is certainly 
material on the other three counts. Furthermore, the first 
and second counts may be dismissed at this point from 
further discussion. First, these clauses of the Espionage 
Act of 1918 punishing attacks on the Constitution and our 
form of government seem clearly unconstitutional, as stated 
in the preceding chapter. Also, even if they are constitu- 
tional, there was no attack in the pamphlets on our form 
of government, but only upon those who were administer- 
ing that government. Surely the phrase " capitalistic na- 
tion " does not constitute defamation of our political struc- 
ture, which is compatible with other types of economic or- 
ganization, such as national ownership of all industries. 
Although the heavy fines imposed on the defendants under 

6 United States v. Buessel, Bull. 131 ; United States v. Martin, Bull. 
167; United States v. Equi, Bull. 172. 

7 33 Harv. L. Rev. 442, 443, citing Learned Hand, J., in United 
States V. Curran, Bull, 140. 



A CONTEMPORARY STATE TRIAL 129 

these two counts called for some decision on their con- 
stitutionality or construction, the Supreme Court refused 
to make it, and Justice Clarke contented himself with sug- 
gesting that the distinction between abusing our form of 
government and abusing the President and Congress, the 
agencies through which it must function in time of war, 
might be only " technical." ^ If so, these sections of the 
Espionage Act must have been more frequently violated in 
Wall Street than in Harlem. 

The controversy about this case must be limited to the 
third and fourth counts of the indictment. Aside from ques- 
tions of constitutionality, the government had to establish 
the specific criminal intent required by the indictment and 
the Espionage Act. (1) It had to prove intention to pub- 
lish the pamphlets, because of the word " willfully " and 
on general principles of the criminal law, which ordinarily 
requires intention to do the prohibited act. This the gov- 
ernment undoubtedly did. (2) Under the fourth count 
it had to prove intention to produce curtailment of muni- 
tions, because the words " urge, incite, advocate " create 
an offense analogous to criminal solicitation, which involves 
a specific intent to bring about the overt act. There are 
some sentences in the Yiddish circular which show such an 
intention, although it is open to question whether an inci- 
dental portion of a general protest which is not shown to 
have come dangerously near success really constitutes crim- 
inal solicitation or amounts to advocating. (3) At all 
events, the main task of the government was to establish 
under both counts an additional intention to interfere with 
the war with Germany, and the question whether it proved 
anything more than an intention to obstruct operations in 
Russia is the vital issue of fact in the case. 

Since we had not declared war upon Russia, protests 

against our action there could not be criminal unless they 

were also in opposition to the war with Germany. There 

are two conceivable theories of guilt, which might connect the 

8 Abrams v. United States, 250 U. S. 616, 623. 



130 FREEDOM OF SPEECH 

circulars with the war. First, that the despatch of troops to 
Siberia was " a strategic operation against the Germans on 
the eastern battle front," so that any interference with that 
expedition hindered the whole war. The second theory is, 
that the circulars intended to cause armed revolts and strikes 
and thus diminish the supply of troops and munitions avail- 
able against Germany on the regular battle front. 

Clearly the second theory is the only legitimate basis for 
conviction. That opposition intended to hinder the armed 
occupation of neutral territory and asserting it to be illegal 
should be per se criminal is so clearly a travesty on the 
defense of Belgium and a violation of the right of freedom 
of speech that this view has been unanimously rejected by 
the United States Supreme Court in the Abrams case, by 
the government's brief,® and by writers ^" who support the 
decision. They have all adopted the second theory of guilt 
and have taken it for granted that the jury followed the 
same course. They assume that the convictions represent 
a finding of fact by the jury that the defendants intended 
to interfere with operations against Germany itself and to 
embarrass or defeat the military plans of our government 
in Europe. Practically the whole of the discussion of the 
case has been confined to the question whether such a finding 
that they encouraged strikes and revolts justifies convic- 
tion. Nevertheless, I believe that an examination of the 
record makes it highly probable that these defendants were 
convicted on just the other theory for trying to hinder the 
Russian expedition. 

As a state trial, this case cannot be understood without 
reference to the atmosphere in which the defendants wrote 
the circulars and the jury reached their verdict. I have no 
desire to venture into the Serbonian bog of the Russian Revo- 
lution, but a few undisputed facts must be recalled." On 

9 Page 35 ff . 

10 Mr. Wigmore is a possible exception and may regard all Bol- 
shevism as within the Espionage Act. 

11 The documents are in 7 N. Y. Times Current History of the War, 
VII (part 2) 273; VIII (part 1) 49; VIII (part 2) 465, 470; 



A CONTEMPORARY STATE TRIAL 131 

January 8, 1918, two months after the establishment of 
the Soviet Government, President Wilson declared as the 
sixth of his Fourteen Points, that Russia must have " an 
unhampered and unembarrassed opportunity for the inde- 
pendent determination of her own political development," 
and that the treatment accorded her by her sister nations 
during the months to come would be " the acid test of their 
good-will." On March 11 he telegraphed the Pan-Soviet 
Congress, " May I not take advantage of the meeting of the 
Congress of Soviets to express the sincere sympathy " felt 
for the disastrous outcome of the Brest-Litovsk negotia- 
tions, and again promised that Russia should be secured 
" complete sovereignty and independence in her own affairs." 
Four months later a small body of American marines joined 
in the occupation of Murmansk, and shortly afterwards 
American troops were sent to Vladivostok. On August 3, 
an official statement from Washington announced that mili- 
tary intervention in Russia would only add to the confusion 
there and dissipate our forces on the western front. Con- 
sequently, we would not interfere with the political sov- 
ereignty of Russia or intervene in her local affairs, but would 
merely send a few thousand men to Vladivostok in co-opera- 
tion with Japan, who had given a similar assurance. The 
only present object for which the American troops would be 
employed would be to help the Czechoslovaks against the 
armed German and Austrian prisoners who were attacking 
them, to guard military stores, and render acceptable aid 
to the Russians in the organization of their own self-defense ; 
but we could not restrict the actions or interfere with the 
independent judgment of our associates. 

A few days later Abrams and his friends wrote and printed 
the leaflet headed, " The Hypocrisy of the United States and 
her Allies." 



IX (part I) 87. They are reprinted in Rvssian- American Relations, 
ed. Gumming and Pettit, N. Y., 1920. See Charles Cheney Hyde, " The 
Recognition of the Czechoslovaks as Belligerents," 13 Am. J. Int. L. 93 
(1919). 



132 FREEDOM OF SPEECH 

The Soriet government failed to distinguish between mili- 
tary intervention and the arrival of foreign troops on Rus- 
sian soil. The diplomatic breach was complete. Soon after- 
wards the newspapers were filled with accounts of Bolshe- 
vist atrocities. In September the United States recognized 
the Czechoslovaks as a belligerent government warring 
against Germany and Austria, with their capital in Wash- 
ington and their chief army in Siberia, so that the seacoast 
of Bohemia was evidently the Pacific Ocean. On Septem- 
ber 15 the United States Committee on Public Information 
published nation-wide in the press the documents ^^ collected 
by its representative, Mr. Edgar Sisson, which were stated 
to show that the present heads of the Bolshevist government 
were merely hired German agents. No one who recalls the 
widespread popular identification of the Soviet Government 
with Germany in the summer and early autumn of 1918 can 
doubt that an October jury would inevitably regard pro- 
Bolshevist activities as pro-German, and consequently apply 
the first or Russian theory of guilt, besides having a preju- 
dice against tne defendants as sympathizers with the Rus- 
sian Revolution, which could only be overcome by an expo- 
sition of the Russian situation from sources which had as yet 
found no expression in the newspapers. 

Early on Friday, October 18, the fifth day of the actual 
trial, the government rested. Mr. Weinberger opened the 
case to the jury on behalf of the defendants, and called 
to the witness stand Colonel Raymond Robins. Mr, Robins 
had not abandoned without a struggle the retirement in 
which he had lived since his return from Russia. He had 
tried to avoid service of a subpoena, and the United States 

12 "War Information Series, No. 20 (October, 1918); the documents, 
without the historical report, are in Bolshevik Propaganda, etc., p. 
1125. The documents appeared in the public press by installments, 
beginning September 15, 1918. See the Neiv York Times of that date. 
For criticism of their genuineness, see 16 Neto Republic 209 (Septem- 
ber 21, 1918), 107 Nation 616 (November 23, 1918), and the anti- 
Bolshevist book, E. H. Wilcox, Russia's Ruin, New York, 1919. They are 
accepted as genuine by ^tienne Antonelli, La Russie Bolcheviste, Paris, 
1919. 



A CONTEMPORARY STATE TRIAL 133 

marshal was on the point of breaking in the door of his 
apartment when it opened and Mr. George W. Wickersham 
came out. As Mr. Robins's personal counsel he agreed to 
his testifying, but accompanied him to and from the court- 
room and sat at the counsel table during his examina- 
tion.^' 

After a dozen introductory questions, the United States 
attorney objected to further examination, and the witness 
thereafter was obliged to remain silent while the defendants' 
counsel ran through a series of thirty unanswered questions 
in order to get them on the record. This was repeated with 
Albert Rhys Williams, and it was not considered worth while 
to call Edgar Sisson at all. The admissibility of their evi- 
dence raises problems that go to the heart of the case. 

The first theory of guilt raised the complex question 
whether the Russian expedition was a part of the war. If 
this is a political question which must be answered in the 
affirmative on the mere ipse dixit of the government, the 
existence of a war enables the government to withdraw the 
most remote and questionable policies from the scope of 
ordinary discussion simply by labeling them a war matter. 
The annexation of Mexico to prevent its becoming a base 
for German operations, the use of American troops to put 
down strikes in England or Sinn Fein in Ireland, are no 
more remotely connected with the war with Germany than 
the Russian affair. On the other hand, if the relation of such 
an expedition to the war is put in issue to be decided by 
the jury, the defense ought to be able to call witnesses to 
disprove it. On this account, in the Abrams case, Raymond 
Robins and other eyewitnesses of Russian affairs were sum- 
moned to prove that the Bolshevist and Czechoslovak sit- 
uation was such that our intervention was not anti-German ; 
but this testimony and all questions of the constitutionality 
of intervention were excluded by Judge Clayton with the 

13 The summary of the Robins incident is taken from Record, 110- 
138; New York Call, October 19, 1918; conversation with Mr, Wein- 
berger. 



134 FREEDOM OF SPEECH 

remark, " The flowers that bloom in the spring, tra la, 
have nothing to do with the case." ^* 

This phase of the trial is very important for its demon- 
stration of the enormous difficulties of proof into which we 
have brought ourselves in the United States by creating 
political crimes. Before the Espionage Act our criminal 
law punished men almost entirely for acts which take place 
in the tangible world and are proved by the evidence of our 
five senses. This Act punishes men for words which cause 
no injury, but have a supposedly bad tendency to harm the 
state, and also for intentions which are regarded as evil. 
Now, bad tendency and bad intention cannot be seen or 
heard or touched or tasted or smelled. They are, as we 
have seen, a matter of inference from the complex and obscure 
background of general conditions. Consequently, that back- 
ground becomes, whether we admit witnesses or not, an issue 
in the case. The rules of evidence for the trial of overt crim- 
inal acts prove almost useless. Common sense makes it 
plain that a knowledge of Russian affairs was essential to a 
jury with the attitude of that moment, obliged to interpret 
the repeated references to Russia in the circulars, and as 
we shall see, told often by the judge that the defendants 
were guilty if their pamphlets were issued for the purpose 
of preventing the government from carrying on its opera- 
tions in Russia. 

All prosecutions for words will involve us in the same 
awkward dilemma that was suggested in connection with the 
" false statements " clause in the Pierce case. If we follow 
the logical course just indicated and allow the alleged pro- 
moter of sedition to bring in a mass of eviden-ce from Rus- 
sia or other dark and distant regions to show that neither 
he nor his utterances are liable to cause even remote injury 
to the national welfare, the prosecution is justly entitled 
to call other witnesses to establish the evil character of the 
agitation. Every sedition trial will be a rag-bag proceed- 
ing like the hearings about Bolshevism before the Overman 

li Record, pp. 120, 132. 



A CONTEMPORARY STATE TRIAL 135 

Committee of the Senate. As Judge Clayton pointed out 
in the Abrams trial, the admission of Raymond Robins's tes- 
timony would open up a Pandora's box. The district attor- 
ney would offer on his side to prove that Trotsky had been 
bought by the German Government. 

To use a vulgar expression, it would be " swiping " them on 
the other hand, and we would forget all about the issues in this 
case, and we would find ourselves trying Lenine and Trotsky, 
which is something I do not intend to do. I have enough trouble 
trying these people here in the United States, and God knows 
I am not going into Russia to try to try anybody there. ^^ 

On the other hand, if for the sake of speed and conven- 
ience we adopt the policy of Judge Clayton and exclude 
general testimony as to bad tendency, pinning the evidence 
down to the facts of publication and the precise intention of 
the defendants, we shall often do a grave injustice to the 
prisoners. The jury and even the judge may bring to the 
trial preconceived views of the bad tendency and evil pur- 
pose of utterances opposed to the existing economic and social 
order or to war policies supported by the great mass of the 
population. If no counter-evidence to show that the opinions 
of the defendants may be reasonable or honest is admitted 
from third persons like Raymond Robins, these presupposi- 
tions must inevitably remain. Even if a defendant is allowed 
a wide scope in testifying in his own behalf, he is often 
the sort of man whose arguments carry little weight. In 
other words, in spite of the judge's desire to exclude outside 
evidence on either side as to bad tendency and bad inten- 
tion from the case, such evidence in favor of a bad tendency 
and a bad intention is often automatically admitted the mo- 
ment that the jury enter the box, and no system of chal- 
lenges can avoid it. During a war they have for months 
been supplied with evidence by the government and the loyal 
press, diametrically opposed to the utterances for which the 
prosecution is brought. Unless something is done to tear 

15 Record, 130, 131. For Pierce v. U. S., see page 101, supra. 



136 FREEDOM OF SPEECH 

the tribunal out of the fabric of public sentiment, a convic- 
tion is almost certain to result in prosecutions for political 
crimes, where the ordinary tests of the five senses play no 
part and men are forced to judge of the opinions and char- 
acter of the prisoners by their own opinions and character 
as formed in the furnace of war. What Mr. Robins has 
since said and written makes it clear that his evidence would 
have been highly valuable to the defense. 

Despite the practical inconveniences of such testimony as 
his in political prosecutions, it is the method pursued in 
countries where political crimes have existed when unknown 
in the United States. France, for instance, allows a " free 
defense," as in the Affaire Dreyfiis. The defendant is not 
only allowed to say anything in his own favor, but may 
bring forward any witnesses he pleases, who express them- 
selves fully and unhindered. Strange as it seems to us, the 
results are said to be very satisfactory.^® Consequently, if 
we are going to continue to prosecute men for the bad 
political tendency of their disloyal or anarchistic utter- 
ances, we may have to adopt a similar wide-open policy in 
justice to the defendants. 

Better far to reject both horns of the dilemma and refuse 
altogether to make tendency a test of criminality. If we 
are not willing to allow the free defense, we ought to abolish 
political crimes by the repeal of the Espionage Act and 
all other sedition statutes. 

In the absence of any established technique for political 
crimes in this country, the exclusion of the Robins testi- 
mony was correct, since it did not bear directly on the only 
legitimate theory of guilt, but this only made it all the more 
imperative that Judge Clayton should repeatedly during the 
trial and in his charge insist to the jury that opposition 

16 Robert Ferrari, " The Trial of Political Prisoners Here and 
Abroad," 66 Dial 647 (June 28, 1919). The same method is pursued in 
French murder cases where " the honor of the family " is a defense, 
and perhaps instances like the Thaw trial show it is not wholly unknown 
in this country. See Walter F. Angell, " A Providence Lawyer at the 
Caillaux Trial," Providence Daily Journal, August 21, 1914. 



A CONTEMPORARY STATE TRIAL 137 

to our Russian policy was not in itself a crime. He ought 
to have cleared Russia and Bolshevism out of the case for 
good and all, and pounded home the proposition that the 
only issue under the third and fourth counts (which alone 
should have gone to the jury, if anything went at all) was 
whether the defendants intended by inducing strikes in muni- 
tion factories and other forms of protest to interfere with 
the supply of munitions for use against Germany. No one 
who will put himself back into the atmosphere of October, 
1918, can doubt that the jury would naturally regard pro- 
Bolshevist activities as pro-German, and that it was the duty 
of Judge Clayton to warn them explicitly against the Rus- 
sian theory of guilt, and confine their attention to the pro- 
German theory. There is no trace of such a warning in 
the record. Instead, Judge Clayton himself repeatedly pro- 
claimed the unsound theory of guilt, that if the defendants 
intended to oppose the government's Russian policy, they 
had ipso facto violated the law. 

Before the defendants had put in any material testimony, 
he said : ^^ 

Now the charge in this case is, in its very nature, that these 
defendants, by what they have done, conspired to go and incite 
a revolt; in fact, one of the very papers is signed ' Revolution- 
ists,' and it was for the purpose of avoiding — a purpose expressed 
in the paper itself — the purposes of the Government and raising 
a state of public opinion in this country of hostility to the 
Government of the United States, so as to prevent the Government 
from carrying on its operations and prevent the Government from 
recognizing that faction of the Government of Russia, which the 
Government has recognized, and to force the Government of the 
United States to recognize that faction of the Government in 
Russia to which these people were friendly. 

Now, they cannot do that. No man can do that, and that is 
the theory that I have of this case, and we might as well have 
it out in the beginning. 

The court did tell the jury that this statement was not 
part of the evidence and should be disregarded in passing on 

17 Record, pp. 117, 118. 



138 FREEDOM OF SPEECH 

the issue of fact, but the harm was done and he took no 
steps to present any concrete alternative view. The second 
and legitimate theory of guilt was never stated by him, 
and it is doubtful if he himself ever realized the distinction 
or what really was in issue. Instead, he continued to apply 
the Russian theory in his cross-examination of Lipman, for 
it is one of the remarkable features of this case that most 
of the cross-examination of the prisoners was not by the 
district attorney, but by the court, who sometimes broke 
in upon the direct examination before half a dozen ques- 
tions had been asked.^^ Lipman was testifying in response 
to his counsel that he had written the English pamphlet 
because the President after sending the telegram of sym- 
pathy to the Soviets had a few weeks later despatched a mili- 
tary expedition to Russia. Judge Clayton took over the 
witness : " 

" The President, you thought, and all that he was doing ought 
to be stopped and broken up ? " " I thought when I know he is 
elected by the people they should protest against intervention. 
... I did not want to break up. I called for a protest, which 
as I understand it, from my knowledge of the Constitution, the 
people of America had a right to protest." . . . 

" Did you not intend to incite or provoke or encourage resistance 
to the Government of the United States.'' " " Not to the Govern- 
ment — never did." 

" Who was acting for the Government if the President was 
not.''" "I thought it was the Congress and Senate that was 
supposed to represent the people of America." 

" The President is the executive head . . . You intended to 
incite opposition to what the President did ? " "I did not. I 
intended to enlighten the people about the subject, for, as I 
stated, the papers were afraid to state it, and I thought it was the 
right time." 

"... The Government acts through the President, and you 
intended to incite opposition to what he was doing? " " I intended 
to incite opposition to every wrong act I understood to be wrong." 

18 See the court's cross-examination of Abrams, Record, p. 163. 
The testimony not included in the Record shows much more questioning 
by the judge. See current issues of the New York Times and New 
York Call; Stenographer's Notes. 

19 Record, pp. 201-203. 



A CONTEMPORARY STATE TRIAL 139 

" You had the specific intention to make public opinion and 
arouse public opinion against intervention in Russia? " " Yes." 

When the judge also kept saying that the defendants' 
opinion of the legality of the President's action could not 
justify them in breaking the law,"° he made their anti- 
interventionist propaganda seem a crime in itself, 
and there was no need for the jury to consider 
whether they had any intention to prevent the shipment of 
munitions to the western front. There is nothing in the 
charge about such an intention, nothing to exclude Russian 
operations from the scope of the war. Therefore, it is very 
probable that the defendants were convicted on an erroneous 
theory of guilt, simply because they protested Against the 
despatch of armed forces to Russia. 

However, it is maintained that the defendants did intend 
to hinder the fighting against Germany and so were properly 
convicted on the second theory of guilt. There are three 
classes of evidence in the case bearing on their intention. 

First, the two pamphlets speak for themselves. Both 
plainly protest against our Russian policy and not against 
the war. The English circular emphatically repudiates the 
charge of pro-Germanism. It is nearly all expository, but 
throws in a few general exhortations which have been tossed 
about in every Socialistic hall and street-meeting for seventy 
years since the Communist manifesto in 1848 until Justice 
Clarke discovered in 1918 that it was a crime in war time 
to say, " Workers of the World ! Awake ! Rise ! Put down 
your enemy and mine. . . . Capitalism ! " 

" This," he declares, " is clearly an appeal to the * work- 
ers ' of this country to arise and put down by force the 
Government of the United States." '^ 

If this be so, practically every Socialistic book or pam- 
phlet violates the Espionage Act, and the belief of American 
Socialists that the Act was directed against their political 

20 Record, pp. 115-121, 130-138, 167, 172, 173. See also Stenographer's 
Notes of Testimony, passim. 
21250 U. S. @ 620 (1919). 



140 FREEDOM OF SPEECH 

existence as a party under the pretext of war finds ample 
justification. Military imagery ought not to be taken liter- 
ally in radical propaganda, any more than in church hymns. 
Nothing could show better than this sentence of Justice 
Clarke's how peace-time statutes which are limited in terms 
to the advocacy of " force and violence " may be interpreted 
judicially to punish obnoxious radical opinions which call 
for working-class action without a single word to indicate 
that force is to be employed. 

The Yiddish circular is more specific and calls for a gen- 
eral strike, which can no more be kept out of a radical 
pamphlet than King Charles's head could be barred from 
Mr. Dick's Memorial. We ought to hesitate a long while 
before we decide that Congress made such shop-worn ex- 
uberance criminal. Very likely, as Justice Clarke says, 
" This is not an attempt to bring about a change of admin- 
istration by candid discussion," ^^ — but how much political 
discussion is candid? If nothing but candid discussion is 
protected by the First Amendment, its value for safeguard- 
ing popular review of official acts is nil. And even if words 
like " fight " and " revolution " indicate violence, though 
often used in a peaceable sense, the advocacy of strikes and 
violence is not a crime under this indictment unless intended 
to resist and hinder the war with Germany. 

The second group of evidence consists of two manuscripts 
which were seized at the time of the arrests without a search- 
warrant.^^ One, a yellow sheet of paper in handwriting, 
taken from Lipman, contains a passage about keeping the 
allied armies busy at home in order to save the Russian 
Revolution."^ The other, some typewritten sheets found in 

22 Ibid. 622, Bagehot points out the danger of such a test : " The 
eflFect of all legislative interference in controversies has ever been to 
make an approximation to candor compulsory on one side but to en- 
courage on the other side violence, calumny, and bigotry." — Works, 
Longmans' ed., X, 127. 

23 A contest could have been made on this point. See Chapter VI. 

24 Government's Exhibit 11, Record, pp. 250, 251, See also Record, 
pp. 45, 103; also 78, where Lipman, under examination by the military 
intelligence police, testified it meant soldiers were to be kept busy pre- 
venting and stopping protest meetings. 



A CONTEMPORARY STATE TRIAL 141 

a closet in Abrams' rooms on a pile of books and papers, 
urges at its close a similar policy, so that there will be no 
armies to spare for Russia, and adds that if arms are used 
against the Russian people, " so will we use arms, and they 
shall never see the ruin of the Russian Revolution." ^^ Very 
little attention was given to these manuscripts in either 
brief on appeal, but Justice Clarke says, after quoting the 
passages just mentioned: 

These excerpts sufficiently show, that while the immediate oc- 
casion for this particular outbreak of lawlessness, on the part 
of the defendant alien anarchists, may have been resentment 
caused by our government sending troops into Russia as a stra- 
tegic operation against the Germans on the eastern battle front, 
yet the plain purpose of their propaganda was to excite, at the 
supreme crisis of the war, disaffection, sedition, riots, and, as 
they hoped, revolution, in this country for the purpose of embar- 
rassing and if possible defeating the military plans of the Gov- 
ernment in Europe.^^ 

These excerpts form a small part of two long discussions 
wholly concerned with the wrong committed against Russia 
by both Germany and ourselves. The clear and only pur- 
pose is to stop Russian intervention. Much more important, 
these passages do not occur in the pamphlets for which the 
defendants were indicted. They are in manuscripts which 
were never printed. There is not the slightest testimony 
that any one intended to print them, or indeed that the 
author, Lipman, ever showed them to any one. What one 
man jots down and refrains from printing is very weak 
proof of what several other men intended when they printed 
something else. Finally, a comparison of the second or 
typewritten manuscript with the English pamphlet shows 
that it is only a first draft, and the omission in revision of all 
the passages on which Justice Clarke relies furnishes decisive 

25 Government's Exhibit 13, Record, pp. 252-255. See also Record, 
pp. 65, 104. The significant passages from both manuscripts are in 
260 U. S. @ 622 (1919). Mr. Wigmore actually quotes these pas- 
sages as forming part of the Yiddish pamphlet. 14 III. L. Rev. 644. 

26 250 U. S. @ 623 (1919). 



142 FREEDOM OF SPEECH 

evidence that such language did not express the actual inten- 
tion of the defendants. All talk about keeping soldiers 
busy and using arms was thrown out, and the postscript 
denouncing German militarism was added. In other words, 
the one portion of the draft which might conceivably be 
regarded as favorable to Germany was deliberately dropped 
before printing, and a paragraph was substituted hostile to 
Germany and repudiating pro-Germanism. 

Thirdly, we have the testimony of the defendants on the 
vital issue, whether they intended to defend the Russian 
Revolution by the methods of impulsive youth or intended 
to hinder us in our war against German militarism. All 
were born in Russia and had remained citizens of that coun- 
try during their few years in the United States. All were 
anarchists except Lipman, and he was a Socialist. Nothing 
in the case rebuts the natural inference that such persons 
were devoted to Russian radicalism and bitterly hostile to 
Imperial Germany. 

Abrams, under cross-examination by the district attorney, 
said that he had offered his services to the President to go 
to Russia and fight Germany, but permission had been re- 
fused.^^ Under cross-examination by the court, he denied 
that he intended to obstruct and hinder the government of 
the United States. His object was to help Russia. He did 
not believe in governments and was a revolutionist, rebelling 
against the conditions of life from twelve years of age, but 
that was only his philosophy. It had nothing to do with 
the pamphlets, the purpose of which was to protest against 
intervention.^^ On direct examination he testified that this 
was his sole purpose ; that every Russian revolutionist was 
in favor of America's crushing German militarism ; that he 
would go to Russia to fight it any time he had a chance; 
that he would help send propaganda from Russia to Ger- 
many to start a revolution there, as he had done on the 
border of Austria and was sent to Siberia for it. As 
to the appeal for strikes, he called upon the workers here 

27 Record, pp. 197. 28 Record, pp. 163, 164, 196. 



A CONTEMPORARY STATE TRIAL 143 

not to produce bayonets to be used against the workers in 
Russia. 

" I say it is absurd I should be called a pro-German^ because 
in my heart I feel it is about time the black spot of Europe should 
be wiped out." 

"You are opposed to German militarism in every form?" 
" Absolutely." 

" You would overthrow i t and help overthrow it if you 
could?" "First chance.""^ 

The other defendants testified to the same effect, even 
Molly Steimer, the most inflexible, who says that if she ever 
had a doubt whether people ought to be governed by one 
another it has vanished since she came in contact with those 
who rule, and now refuses to apply for a pardon because 
she ought not to be released so long as thousands of other 
political prisoners are languishing in American jails. She 
stated her intention thus : " The war between the United 
States and Germany does not concern me, because I wish to 
see militarism throughout the entire world crushed by the 
workers. ... I thought, and I do think it now, that 
the workers of the United States who are working in muni- 
tion factories ought to stop producing munitions which are 
used for the killing of Russians. I care nothing about inter- 
fering with the war with Germany, because it does not matter 
to me." 

There is not a word in the whole Record to show that any 
prisoner was opposed to the war with Germany or had any 
intention except an absorbing desire to protest against in- 
tervention in Russia.^^ 

It is hard to see how the jury could have convicted on 
this evidence if they had been instructed that a specific in- 
tent to hinder the war with Germany was necessary, but 
the charge contains nothing on this point except a mere 
repetition of the words of the statute. There is no com- 

^^ Record, pp. 182, 183; and see also 168, 180, 190. 
3oLipman, page 138, supra, Record, pp. 77, 200, 203, 206 ; Lachowsky, 
Record, pp. 223; Steimer, Record, pp. 82, 216, 221, 222. 



144 FREEDOM OF SPEECH 

merit on those words, no attempt to distinguish between a 
general intention to publish and the required specific intent. 
Instead, the judge charged, " People who have circulars to 
distribute, and they intend no wrong, go up and down the 
streets circulating them." ^^ During the trial, although the 
defendants' counsel reminded him that Russian meetings in 
New York had been broken up, Judge Clayton said he would 
leave it to the jury whether throwing pamphlets out of 
windows squared with good, honest intention, and whether 
being anarchists and wanting to break up all government 
squared with honesty and sincerity of purpose. Soon after- 
ward he stated: 

If it were a case where the defendant was indicted for 
homicide, and he was charged with having taken a pistol and put 
it to the head of another man and fired the pistol and killed the 
man, you might say that he did not intend to do that. 

But I would have very little respect for a jury that would 
come in with a verdict that he didn't have any intent.^^ 

Plainly these rulings of Judge Clayton ignore absolutely 
the specific intent to oppose or hinder the war with Ger- 
many, as demanded by the statute, and authorize the jury 
to convict the defendants for intention to publish the pam- 
phlets and a generally bad mind. 

The verdict against Abrams, Lipman, Lachowsky, Rosan- 
sky, and Molly Steimer was guilty on all four counts. The 
sixth prisoner. Prober, was acquitted, for insufficient evi- 
dence of connection with the leaflets. The district attorney's 
oflice, which thought he had distributed leaflets at radical 
meetings, cites his acquittal as evidence of the fairness of the 
jury. 

There is little of the heroic about these defendants and 
much that is repellent. Their beliefs were, as Justice Holmes 
called them, " the creed of ignorance and immaturity." 
Abrams was a sufficiently prominent radical to preside at a 
meeting in New York where Trotsky spoke. He and Lip- 
man, who were subject to the draft as citizens of a nation 

31 Record, pp. 237, 238. 32 Record, pp. 159-161. 



A CONTEMPORARY STATE TRIAL 145 

still technically associated with ours in the war although our 
troops were fighting the compatriots of these men, have been 
indicted on strong evidence for stealing and forging draft 
cards. Two defendants, while out on bail after conviction, 
tried to escape as stowaways from New Orleans to Yucatan. 
Molly Steimer used her temporary freedom to distribute 
anarchistic leaflets in the New York streets, and was sent to 
Blackwell's Island, where she was regarded as incorrigible. 
Yet all this, bad as it is, in no way justifies their conviction 
under the Espionage Act. It is a fundamental principle of 
our law that men must not be punished in one case for other 
crimes, especially if not yet proved. If these prisoners are 
guilty of other offenses, they can be prosecuted for them. 
Such guilt and all their undesirable qualities cannot take 
the place of the essential and absent intention to hinder the 
war with Germany, and do not lessen the bad effects of this 
case as a precedent for the suppression of public protests 
against governmental action on the ground of its illegality. 
Two features of the trial demand a passing notice. The 
method by which confessions were obtained from the defend- 
ants after arrest was not raised on appeal, since the overt 
acts were proved in other ways, but their testimony, if it can 
be believed, throws a significant light on the question, im- 
portant to criminologists, of the treatment which political 
prisoners may expect in this country, especially if they be 
obscure aliens. The deportation raids prove that abuses are 
possible, but such a conclusion cannot be reached in the 
Abrams case without a detailed investigation of the conflict- 
ing evidence. The army sergeants deny threats and force.^' 
The assistant district attorney, who showed much considera- 
tion toward the prisoners, noticed no traces of violence on the 
morning after the arrest, and is convinced that none was 
used. On the other hand, the charges of brutality seem dis- 
quietingl}'^ specific and sincere.^* The defendants and their 

33 Record, pp. 70, 75, 85. Stenographer's Notes, 742 ff., 752 ff. 

34 Stenographer's Notes, 471 ff., 587, 613, 660 flF., 709 flF., 716 flf., 722; 
and the pamphlet. Sentenced to Twenty Years Prison, passim. 



146 FREEDOM OF SPEECH 

counsel also insisted, though the influenza epidemic and the 
long interval since the arrest render it improbable, that 
Schwartz's fatal illness was caused by the violence of one 
soldier, whom Judge Clayton relieved from the necessity of 
telling whether or not he was called by his associates, " The 
Tiger." The court observed, " There is no evidence as to 
who killed Schwartz any more than there was any evidence 
as to who killed cock robin." ^^ 

Legal historians have always taken interest in the criminal 
judge who jests with the lives of men.^^ 

" You keep talking about producers," said Judge Clayton to 
Abrams. " Now may I ask why you don't go out and do some 
producing? There is plenty of untilled land needing attention 
in this country." 

. . . The witness said that he was an anarchist and added 
that Christ was an anarchist. 

"Our Lord is not on trial here. You are. . . ."^t 

At another point the witness began some remarks about 
John D. Rockefeller. 

" Now," said Judge Clayton, " suppose we eliminate Mr. 
Rockefeller. He is not on trial. However, I will say that it is 
quite true that Mr. Rockefeller is a man of considerable wealth 
and he has done a great deal of good. He has eliminated the 
hook-worm, which was the curse of childhood in large sections of 
our country; he has established and maintained a great research 
hospital, and in other ways used his wealth to better the condition 
of his fellows. We will now proceed with the case." 

" We will now," said Mr. Weinberger, " ask the witness about 
his other writings. The Holy Alliance " 

" Cut out the Holy Alliance. That is not in the issue ..." 

35 Stenographer's notes, 665. 

36 The judge's words are taken verbatim from the New York Times, 
October 22, 1918, which was so far from being prejudiced against him 
that on October 28 it said editorially, "Judge Henry D. Clayton de- 
serves the thanks of the city and of the country for the way in which 
he conducted the trial," and praised his *' half-humorous " methods. 

37 Braxfield replied to a similar comparison, " Muckle he made o' 
that; he was hanget." See the account of how he tried Muir for sedi- 
tion in R. L. Stevenson, Some Portraits by Raeburn, and Philip A. 
Brown, The French Revolution in English History, London, 1918, 95-9Q. 



A CONTEMPORARY STATE TRIAL 147 

" When our forefathers of the American Revolution " the 

witness began, but that was as far as he got. 

" Your what? " asked Judge Clayton. 

" My forefathers," replied the defendant. 

" Do you mean to refer to the fathers of this nation as your 
forefathers ? Well, I guess we can leave that out, too, for Wash- 
ington and the others are not on trial here." 

Abrams explained he called them that because, " I have respect 
for them. We all are a big human family, and I say ' our 
forefathers.' . . . Those that stand for the people, I call them 
father." ^s 

The day after conviction the prisoners were called before 
Judge Clayton for sentence. The court said : ^* 

" I am not going to permit anybody to start anything to-day. 
The only matter before this court is the sentencing of these per- 
sons. There will be no propaganda started in this court, the 
purpose of which is to give aid and comfort to soap-box orators and 
to such as these miserable defendants who stand convicted before 
the bar of justice." 

When Lipman, the socialist, stepped forward to address the 
court and started to harangue about democracy, " You don't 
know anything about democracy," said Judge Clayton, " and the 
only thing you understand is the hellishness of anarchy." . . . 

" These defendants took the stand. They talked about 
capitalists and producers, and I tried to figure out what a 
capitalist and what a producer is as contemplated by them. After 
listening carefully to all they had to say, I came to the conclusion 
that a capitalist is a man with a decent suit of clothes, a minimum 
of $1.25 in his pocket, and a good character. 

" And when I tried to find out what the prisoners had pro- 
duced, I was unable to find out anything at all. So far as I can 
learn, not one of them ever produced so much as a single potato.*" 
The only thing they know how to raise is hell, and to direct it 
against the government of the United States. . . . 

" But we are not going to help carry out the plans mapped 
out by the Imperial German Government, and which are being 
carried out by Lenine and Trotsky. I have heard of the reported 
fate of the poor little daughters of the Czar, but I won't talk 

38 Abrams' reply is in Record, p. 194. 

39 New York Times, October 26, 1918. 

40 Abrams and I.achowsky bound books, Lipman produced furs, 
Rosansky produced hats, Molly Steimer produced shirtwaists. 



148 FREEDOM OF SPEECH 

about that now. I might get mad. I will now sentence the 
prisoners." ^„. 

Rosansky was given three years in prison, Molly Steimer 
fifteen years and $500 fine, Lipman, Lachowsky, and Abrams 
twenty years (the maximum), and $1,000 on each count. 
If they had actually conspired to tie up every munition plant 
in the country and succeeded the punishment could not have 
been more.*^ 

" I did not expect anything better," said Lipman. 
"And may I add," replied the judge, "that you do not 
deserve anything better." ^^ 

II. The Supreme Court 

Seven judges of the Supreme Court were for affirmance 
of these convictions. Justice Clarke delivering the majority 
opinion. Justice Holmes read a dissenting opinion, in which 
Justice Brandeis concurred. The Supreme Court had only 
a limited power to correct any errors that may have oc- 
curred at the trial. It could not revise the sentences.^^ It 
could not set aside the verdict because its judges would have 
found differently on the facts themselves, but only if there 
was so little evidence of the required guilty intent that a 
reasonable jury could not have convicted. It would be very 
unlikely to grant a new trial for misdirection and failure to 
place properly before the jury the vital issue of specific in- 
tent to hinder the war, since no objection on this ground is 

41 It would not be treason for lack of overt acts. See Chapter VI. 
Therefore, they would be punishable only under the Espionage Act. 
The general statute on conspiracy to destroy by force the government of 
the United States imposes only six years. Crim,. Code, § 6, U. S. Comp. 
Stat., 1918, § 10170. Conspiracies to limit the production of necessaries 
are punishable under the Lever Act by two years. Act of August 10, 
1917, c. 53, § 9, 40 Stat, at L. 279, U. S. Comp. Stat., § 3115% i. 

42 New York Times, supra. Record, p. 243, says, " I do not think 
you deserve anything less. Now, the next one." 

•*3 That excessive sentences may possibly constitute " cruel and un- 
usual punishment " under the Eighth Amendment, see Weems v. United 
States, 217 U. S. 349 (1910), per McKenna, J., White and Holmes, J J., 
dissenting. 



A CONTEMPORARY STATE TRIAL 149 

noted in the bill of exceptions,** although as I have tried to 
show, the trial judge did nothing to enlighten the jury on the 
issues of specific intent and did much to becloud that diffi- 
cult question, so that they very probably reached a verdict 
on entirely inadequate grounds, — the existence of intention to 
publish and to oppose Russian intervention. Only two real 
questions were before the court: the existence of the requi- 
site evidence of specific intent under the third and fourth 
counts, the other two being disregarded, and whether the 
Espionage Act could constitutionally be interpreted to apply 
to this case. 

The required specific intent to hindei' the war with Ger- 
many is worked out by Justice Clarke in this way : " It will 
not do to say . . . that the only intent of these defendants 
was to prevent injury to the Russian cause." They intended 
a general strike of munition workers, i.e., a curtailment of 
production. This plan necessarily involved, before it could 
be realized, the paralysis and defeat of the war pro- 
gram of the United States. Therefore, the defendants in- 
tended such an interference with the war, since " men must 
be held to have intended, and to be accountable for, the ef- 
fects which their acts were likely to produce." *^ 

The " unfortunate maxim " propounded by the Justice 
is a pure fiction.*^ Obviously our acts result in many prob- 
able consequences which we do not intend. If he means that 
the defendants were liable for such consequences even if they 
did not in fact intend them, he states a principle of law 
which is applicable to some crimes, but not to those in which 
the law requires a specific intent, as in the case at bar. In 

44 The Supreme Court has granted a new trial for unexcepted mis- 
direction imperiling liberty. Wiborg v. U. S., 163 U. S. 632, 659 
(1896). Accord, Skuy v. U. S., 261 Fed. 316 (C. C. A. 8th, 1919). See 
August V. United States, 257 Fed. 388 (C. C. A. 8th, 1919), which holds 
that Act of February 26, 1919, c. 48, amending Judicial Code, §269, 
now authorizes an appellate court to look to the entire record and render 
judgment without regard to the technicality of want of exceptions. It 
is doubtful, however, if this statute does more than prevent reversals 
for non-prejudicial errors. 

45 250 U." S. @ 621. 

46 Jeremiah Smith, " Surviving Fictions," 27 Tale L. J. 147, 156 (1917), 



150 FREEDOM OF SPEECH 

those crimes the defendant must actually have the defined 
state of mind.*^ Thus a man who broke into a barn at 
night and cut the sinews of a horse's leg to prevent his 
winning a race is not guilty of burglary with intent to kill 
a horse, even though in consequence of the injury the horse 
died.*^ It is needless to multiply examples. Even reck- 
lessness does not take the place of the state of mind de- 
manded by the statute.^® On the other hand, if he means 
that the jury may permissibly infer as a matter of fact 
from the doing of an act that the actor intends its ordinary 
consequences, this is true enough,^" but such an inference 
is worthless if theri^ is overwhelming express evidence that 
the defendant had an entirely different intention. That is 
the situation in the Abrams case, where the pamphlets and 
the defendants' testimony show that they intended to help 
Russia. 

The majority opinion must rest on the first sentence quoted 
from Justice Clarke, that aiding Russia was not the only 
intent of these defendants. It is argued that they had two 
intents: (1) to help Russia, (2) to hinder the war by cur- 
tailment of production in order to accomplish that object; 
that it is immaterial which intent was principal and which 
subordinate, so long as both existed."^ Thus if I throw a 
brick at a man behind a plate-glass window, my principal 
desire may be to hit him, but if that necessarily involves 
breaking the window and I know this fact, I have a secondary 
intention to break it and am guilty of intentional destruction 
of property, even though I would much rather not have 
broken the glass. ^^ When a man was indicted for assault on 
another with intent to disfigure him by biting off his ear, it 

47 May, Criminal Law, 3 ed., §34; 1 Bishop, New Criminal Law, 
8 ed., §335; Roberts v. People, 19 Mich. 401, 416 (1870); Ogletree v. 
State, 28 Ala. 693, 701 (1856). 

48 Dobbs' Case, 2 East P. C. 613 (1770), 

49 United States v. Moore, 2 Lowell (U. S.) 232 (1873). 

50 Jeremiah Smith, op. cit.; People v. Scott, 6 Mich. 287, 296 (1859). 
51 1 Bishop, New Criminal Law, 8 ed., §339; Rex v. Gillow, 1 Moody 

C. C. 85 (1825). 

52 0/. Rex V. Pembliton, 12 Cox C. C. 607 (1874), A shooting 
analogy is given in 83 Harv. L. Rev. 444 note. 



A CONTEMPORARY STATE TRIAL 151 

was useless for him to argue that he only intended to injure 
but not to disfigure, since the disfigurement was a neces- 
sary and obviously a known consequence of the intended 
act." 

There are several answers to this argument that one who 
intends a curtailment of munitions for any purpose must 
know that fewer munitions will hinder the war and therefore 
must ipso facto intend to hinder the war. First, the analogy 
of the throwing and biting cases just stated is too simple to 
have any application to the Abrams case. There is no such 
obvious and mechanical chain of cause and effect in complex 
social conditions, and the obscure factors involved are en- 
tirely beyond the capacity of a jury to decide. The argu- 
ment supposes (1) that the hindrance of the war is inevi- 
table, (2) that this inevitable consequence must have been 
in the defendants' minds. Both steps are very questionable, 
and the opinion of a jury on either step should have no 
weight with an appellate court. Of the first Justice Holmes 
says, " An intent to prevent interference with the Revolution 
in Russia might have been satisfied without any hindrance to 
carrying on the war in which we were engaged." ^* Thus 
a very short strike that stopped intervention would have 
caused a very small loss in munitions for shipment to France, 
which would have been enormously offset by the release of 
troops and equipment previously diverted to Russia, and a 
different Russian policy might have created greater liberal 
enthusiasm in this country and elsewhere for the President's 
war aims. The second step ignores the belief of the defend- 
ants that a friendly Soviet Government would render valuable 
aid in attacking Imperial Germany by war, or at least by 
propaganda, whose effectiveness was proved within a fort- 
night after the conviction of Abrams and his friends. 

Secondly, if every curtailment of munitions, whatever its 
purpose, is necessarily criminal under this Act, because of 
its alleged obvious and inevitable effect on the war, why does 

53 state V. Clark, 69 Iowa 196 (1886). 

54 250 U. S. @ 628 (1919). 



152 FREEDOM OF SPEECH 

the Espionage Act take pains to limit the crime to " cur- 
tailment . . . with intent . . . to cripple or hinder the 
United States in the prosecution of the war "? ^^ This 
clause is superfluous and meaningless, if every advocacy of 
curtailment involves such an intent. This clause about 
intent must add something to the rest of the definition of this 
crime. " Intent to hinder the war " clearly means more than 
the artificial lawyer-made intention to obstruct the war con- 
jured up from any threat of a strike. The word " intent " 
in a very severe criminal statute and especially a statute 
limiting popular discussion must mean what any layman who 
wished to urge a strike in war time lawfully would assume 
it to mean, that interference with the war must not be the 
object of his exhortation, the purpose at which he aims. 
Such a man would be entrapped if " intent " means an inci- 
dental, undesired, and at the most a vaguely considered con- 
sequence of his utterances.^^ Strikes are not ordinarily 
illegal, and it would be startling if Congress intended to 
prohibit all incitement to them in war. Naturally the 
statute confined itself to strikes and similar measures that 
were specifically planned to interfere with the war. 

This is not, as has been charged, a confusion of intent and 
motive.^^ It is absurd to say that " interference with the 
war was palpably the direct and desired effect which these 
appeals were intended to produce " and aid to Russia only 
a motive. Justice Clarke expressly recognizes that the 

65 It is significant that Justice Clarke omits this clause in quoting 
the indictment, and possibly he overlooked it altogether and assumed 
that intent to advocate curtailment of war essentials was the only intent 
specified in the Act. 

^^ Ibid., Holmes, J.: "When words are used exactly a deed is not 
done with intent to produce a consequence unless that consequence is 
the aim of the deed — unless the aim to produce it is the proximate 
motive of the specific act ..." The Sabotage Act punishes defective 
manufacture of war essentials only if there is intent to interfere with 
the war or reason to believe that the act will interfere with it. Act of 
April 20, 1918. 

57 " Justice Holmes' Dissent," 1 Review 636 (December 6, 1919). 
This article also censures Justice Holmes for not quoting the passage 
about keeping the armies at home. I hope I have shown reasons why 
it should never have been quoted by any judge. 



A CONTEMPORARY STATE TRIAL 153 

" primary intent " was to help Russia.^* The defendants 
intended to produce certain tangible results, notably pro- 
test meetings, which in turn were intended to produce 
another tangible result, the end of intervention. Their mo- 
tive was love for Russia. Possibly they also intended as 
part of their machinery of protest to produce a general 
strike, if intent can exist without any expectation of success. 
Interference with the war was at the most an incidental 
consequence of the strikes, entirely subordinate to the longed 
for consequence of all this agitation, withdrawal from Rus- 
sia. It is wholly unsound to label the conjectural war conse- 
quence intent and the absorbing Russian consequence motive. 
Finally, this argument of inevitable hindrance proves too 
much. If these defendants were guilty under the fourth 
count, so was every other person who advocated curtailment 
in the production of war essentials, no matter what his 
purpose. The machinists in Bridgeport who struck in 
defiance of the arbitration of the National War Labor Board 
violated the Espionage Act, although they intended to 
obtain higher wages. The Smith and Wesson Company 
violated it in refusing to continue to manufacture pistols 
under another arbitration, although they intended to retain 
an open shop.^^ The coal miners last autumn violated that 
Act in calling a strike. The government should have 
threatened all these people with the twenty-year penalty of 
the Espionage Act instead of acting under its general war 
statutes or imposing the milder rigors of the Lever Act and 
an injunction.®" 

58 250 U. S. @ 621. 

59 See these two cases in Report of the Activities of the War Depart- 
ment in the Field of Industrial Relations During the War (Washington, 
1919), 32-35. 

60 I have not troubled to apply similar reasoning to the third count 
of the indictment, because for reasons already stated I do not consider 
the pamphlets contained any advocacy of resistance to the United 
States. Consequently, that count should be disregarded like the first 
two. Holmes, J., says: "Resistance to the United States means some 
forcible act of opposition to some proceeding of the United States in 
pursuance of the war. . . . There is no hinfat resistance to the United 
States as I construe the phrase." 250 U. S. @ 629 (1919). 



154 FREEDOM OF SPEECH 

In other words, the Supreme Court was construing not 
only a criminal statute which must be applied in a fashion 
which the laymen who are menaced by it will readily under- 
stand, but a statute limiting discussion and hence to be 
interpreted in the light of the First Amendment. It ought 
not to be assumed that Congress meant to make all dis- 
cussion of any governmental measure criminal in war time 
simply because of an incidental interference with the war. 
The danger of the majority view is that it allows the gov- 
ernment, once there is a war, to embark on the most 
dubious enterprises, and gag all but very discreet protests 
against these non-war activities. To give extreme concrete 
examples: Irish munition workers could not have been urged 
to strike had our government been sending arms to Dublin 
Castle, because this would have lessened munitions for France, 
since a machinist could not be sure that any particular shell 
or gun was going to Ireland. Incitement to armed resistance 
to an executive edict nationalizing women would be opposi- 
tion that might paralyze the war, and therefore easily sup- 
pressed under this Act. 

The majority opinion dismisses this matter of constitu- 
tionality in two sentences, citing decisions on the Espionage 
Act of 1917 to establish the validity of the far more objec- 
tionable provisions of the Act of 1918.®^ Furthermore, the 
court did not have to declare the clauses involved in the third 
and fourth counts void. Indeed, it cannot reasonably be 
doubted that they are constitutional when construed in ac- 
cordance with the First Amendment. It is the same situa- 
tion that Judge Hand pointed out in Masses v. Patten : ®^ 
it is not a question of judicial refusal to enforce legislation, 
but of giving it a construction which will not limit discussion 
beyond the express terms of the Act. The words of the 
statute requiring a specific intent were presumably not 
meant by Congress to bear a meaning which would curb 
political agitation on matters unrelated to the war. The 

61 250 U. S, @ 619. 

82 244 Fed. 635, 638 (1917). See p. 48, supra. 



A CONTEMPORARY STATE TRIAL 155 

statute uses the ordinary language of criminal solicitation 
and attempt, and does not expressly demand the punishment 
of words in the absence of immediate danger or a deter- 
mined purpose in itself dangerous to cause actual obstruc- 
tion of the war. Therefore, it was erroneous for the court 
to construe it so as to make the remote bad tendency and 
possible incidental consequences of these pamphlets a valid 
basis for conviction. And even if all advocacy of curtailment 
of munitions be considered dangerous, the intent clause limits 
the crime and should not have been ignored. While the deci- 
sion of the majority has done a lasting injustice to the 
defendants, its effect on the legal conception of freedom of 
speech should be temporary in view of its meager discussion 
of the subject and the enduring qualities of the reasoning of 
Justice Holmes. 

Although a dissenting opinion, it must carry great weight 
as an interpretation of the First Amendment, because it is 
only an elaboration of the principle of " clear and present 
danger " laid down by him with the backing of a unanimous 
court in Schenck v. United States. Since that case is re- 
affirmed by Justice Clarke this principle still remains law, 
greatly strengthened since the Abrams case by Justice 
Holmes's magnificent exposition of the philosophic basis of 
this article of our Constitution: ♦ 

Persecution for the expression of opinions seems to me perfectly »/ 
logical. If you have no doubt of your premises or your power 
and want a certain result with all your heart you naturally express 
your wishes in law and sweep away all opposition. To allow 
opposition by speech seems to indicate that you think the speech 
impotent, as when a man says that he has squared the circle, or 
that you do not care whole-heartedly for the result, or that you 
doubt either your power or your premises. But when men have 
realized that time has upset many fighting faiths, they may come 
to believe even more than they believe the very foundations of 
their own conduct that the ultimate good desired is better reached 
by free trade in ideas — that the best test of truth is the power 
of the thought to get itself accepted in the competition of the 
market, and that truth is the only ground upon which their wishes 
safely can be carried out. That at any rate is the theory of our 



156 FREEDOM OF SPEECH 

Constitution. It is an experiment, as all life is an experiment. 
Every year if not every day we have to wager our salvation upon 
some prophecy based upon imperfect knowledge. While that ex- 
periment is part of our system I think that we should be eter- 
nally vigilant against attempts to check the expression of opin- 
ions that we loathe and believe to be fraught with death, unless 
they so imminently threaten immediate interference with the law- 
ful and pressing purposes of the law that an immediate check is 
required to save the country. . . . Only the emergency that makes 
it immediately dangerous to leave the correction of evil counsels 
to time warrants making any exception to the sweeping command. 
" Congress shall make no law abridging the freedom of speech." 
Of course I am speaking only of expressions of opinion and 
exhortations, which were all that were uttered here, but I regret 
that I cannot put into more impressive words my belief that in 
their conviction upon this indictment the defendants were deprived 
of their rights under the Constitution of the United States. 

The preceding chapters have been written in support of 
this danger-test as marking the true limit of governmental 
interference with speech and writing under our constitutions, 
but an able and thoughtful criticism of Justice Holmes' 
dissent ^^ makes it imperative to say something more on the 
subject. In the first place, the First Amendment is very 
much more than " an expression of political faith.'* It was 
demanded by several states as a condition of their ratifica- 
tion of the Federal Constitution, and is as definitely a pro- 
hibition upon Congress as any other article in the Bill of 
Rights. The policy behind it is the attainment and spread 
of truth, not merely as an abstraction, but as the basis of 
political and social progress. " Freedom of speech and of 
the press " is to be unabridged because it is the only means 
of testing out the truth. The Constitution does not pare 
down this freedom to political affairs only or to the opinions 
which are held by a majority of the people in opposition to 
the government. A freedom which does not extend to a 
minority, however small, and which affords them no protec- 
tion when the majority are on the side of the government 

63 « The Espionage Act and the Limits of Legal Toleration," 33 
Uarv. L. Rev. 442 (January, 1920), by Day Kimball. 



A CONTEMPORARY STATE TRIAL 157 

would be a very partial affair, enabling the majority to dig 
themselves in for an indefinite future. The narrow view that 
the amendment does not protect a few of the people against 
the force of public opinion throws us back to the English 
trials during the French Revolution, and the Sedition Law 
of 1798, for which the United States through many years 
showed its repentance by pardoning all prisoners and repay- 
ing to them the fines imposed. These were none the less in- 
jurious to the cause of truth because they had the sanction of 
the majority. 

Undoubtedly, although we are not infallible, we must 
assume certain opinions to be true for purposes of action; 
but this does not make it right or desirable to assume that 
they are true for the purpose of crushing those who hold 
a contrary doctrine. 

There is the greatest difference between presuming an opin- 
ion to be true, because, with every opportunity for contesting 
it, it has not been refuted, and assuming its truth for the purpose 
of not permitting its refutation.^* 

The vote of the majority of the electorate or the legisla- 
ture is the best way to decide what beliefs shall be translated 
into immediate action, and the government must resist if its 
opponents begin to carry on the conflict of opinions by 
breaking heads instead of counting them. But it is equally 
inadvisable for the government to seek to end a contest of 
ideas by imprisoning or exiling its intellectual adversaries. 
Force seems like force to its victim, whether or not it has the 
sanction of law. No one will question that the government 
must resist a revolt, however Utopian in purposes, but the 
inference that logically it must also condemn all utterances 
" aimed at such subversion or tending solely thither " ignores 
the difference of degree emphasized by the First Amendment. 
It is the unfailing argument of persecutors. The opinions 
to which they object are always conceived to aim at revolu- 

64 Mill, Liberty, c. II. 



/ 

158 FREEDOM OF SPEECH 

tion, violence, and nothing else, although such utterances 
are usually in large part the exposition of political and eco- 
nomic views. The advocates of parliamentary reform in 
England were condemned on just such reasoning. To throw 
overboard the danger-test, and permit " the suppression, 
whenever reasonably necessary, of utterances whose aims 
render them a menace to the existence of the state," in- 
evitably substitutes jail for argument, since the determina- 
tion of the vague test of " menace " depends on the tribunal's 
abhorrence of the defendant's views. It is no answer that 
this tribunal (outside of the crushing powers of the post- 
office and of the immigration officials in deportation cases) 
is a jury. A fitness to apply a common-sense standard to 
alleged criminal acts bears no resemblance to a capacity to 
appraise the bad political and social tendency of unfamiliar 
economic doctrines during panic. The Abrams case shows 
the capacity of a judge to decide such a question. The only 
tribunal which can pass properly on the menace of ideas 
is time. 

We must fight for some of our beliefs, but there are many 
ways of fighting. The state must meet violence with vio- 
lence, since there is no other method, but against opinions, 
agitation, bombastic threats, it has another weapon, — lan- 
guage. Words as such should be fought with their own 
kind, and force called in against them only to head off 
violence when that is sure to follow the utterances before 
there is a chance for counter-argument. To justify the 
suppression of the Abrams agitation because the government 
could not trust truth to win out against " the monstrous 
and debauching power of the organized lie " overlooks the 
possibility that in the absence of free discussion organized 
lies may have bred unchecked among those who upheld the 
course of the government in Russia. 

The lesson of United States v. Abrams is that Congress 
alone can effectively safeguard minority opinion in times of 
excitement. Once a sedition statute is on the books, bad 
tendency becomes the test of criminality. Trial judges will 



A CONTEMPORARY STATE TRIAL 169 

be found to adopt a free construction of the act so as to 
reach objectionable doctrines, and the Supreme Court will 
probably be unable to afford relief. 

Most of the discussion of the Abrams case has turned on 
the question whether the decision of the United States 
Supreme Court affirming these convictions was right or 
wrong. It seems to me much more important to con- 
sider the case as a whole, and ask how the trial and its 
outcome accord with a just administration of the criminal 
law. 

The systematic arrest of civilians by soldiers on the streets 
of New York City was unprecedented, the seizure of papers 
was illegal, and the charges of brutality at Police Head- 
quarters are very sinister. The trial judge ignored the fun- 
damental issues of fact, took charge of the cross-examination 
of the prisoners, and allowed the jury to convict them 
for their Russian sympathies and their anarchistic views. 
The maximum sentence available against a formidable pro- 
German plot was meted out by him to the silly futile cir- 
culars of five obscure and isolated young aliens, misguided by 
their loyalty to their endangered country and ideals, who 
hatched their wild scheme in a garret, and carried it out in 
a cellar. " The most nominal punishment " was all that 
could possibly be inflicted, in Justice Holmes's opinion,^^ 
unless Judge Clayton was putting them in prison, not for 
their conduct, but for their creed. Yet they are condemned 
for their harmless folly to spend the best years of their lives 
in American jails. The injustice*'^ is none the less 
because our highest court felt powerless to wipe it out. The 
responsibility is simply shifted to the pardoning authorities, 
who except for the release of the unlucky dupe Rosansky have 
as yet done nothing to remedy the injustice, and to Congress 
which can change or abolish the Espionage Act of 1918, so 
that in future wars such a trial and such sentences for the 

65 250 U. S. @ 629 (1919). 

66 See Morley's indignation at the " thundering sentences " for sedi- 
tion in India. 2 Becollections 269. 



160 FREEDOM OF, SPEECH 

intemperate criticism of questionable official action ®^ shall 
never again occur in these United States. 

67 On armed intervention without Congressional authority, see the 
state papers of Seward and Fish in J. B. Moore, Digest of Interna^ 
tional Law, VI, 23 ff., and Moorfield Storey, " A Plea for Honesty," 
7 Yale Rev. 260 (1918): "If any nation were to do any of these things 
to the United States, we should not doubt that it was making war 
on us." 



CHAPTER IV 

LEGISLATION AGAINST SEDITION AND ANARCHY 

If there be any among us who wish to dissolve this union, or 
to change its republican form, let them stand undisturbed, as 
monuments of the safety with which error of opinion may be 
tolerated where reason is left free to combat it. I know indeed 
that some honest men have feared that a republican government 
cannot be strong; that this government is not strong enough. But 
would the honest patriot, in the full tide of successful experiment, 
abandon a government which has so far kept us free and firm on 
the theoretic and visionary fear that this government, the world's 
best hope, may, by possibility, want energy to preserve itself? 
I trust not. I believe this, on the contrary, the strongest govern- 
ment on earth. — Jefferson's First Inaugural. 

LoKG before the armistice it became clear that the problem 
of freedom of speech would not end with the war, but would 
be raised for us in a different aspect and with added diffi- 
culties by the unaccustomed prevalence and outspoken ex- 
pression of radical ideas. Despite my own adherence to tra- 
ditional political and economic views, I believe that this 
phenomenon was bound to result from the wai". The routine 
of the day's work ordinarily holds in check the eternal 
antagonism of the " have-nots " to the " haves," but habits 
of mechanical obedience and adjustment to the prevailing 
scheme of life were suddenly destroyed for many by the rapid 
shift to new scenes and occupations and a novel conviction 
of the power of unskilled labor. The immense amount of 
thought and discussion caused by the war during the three 
years preceding our entry has been often remarked. Such 
an overhauling directed popular attention to the part played 
by economic factors in the origin and conduct of the war. 
Many extreme radicals claimed therefrom fresh proof of the 
economic interpretation of history and the class struggle. 
The official emphasis on democracy against autocracy in- 

161 



162 FREEDOM OF SPEECH 

evitably stimulated discussion of those two concepts and 
their application to industrial and other non-political fields. 
Labor programs in EnglancJ and France crossed the 
ocean. Then came one of the earthquakes of history, from 
whose remote influence it was as impossible for us to escape 
as from the French Revolution which produced the Alien and 
Sedition Laws of 1798. Jefferson's First Inaugural states 
the controversy of to-day. 

During the throes and convulsions of the antient world, dur^ 
the agonis*^ spasms of infuriat*^ man, seeking through blood & 
slaughter his long lost liberty, it was not wonderful that the 
agitation of the billows should reach even this distant & peaceful 
shore : that y^ sh*^ be more felt & f ear^ by some, & less by others, 
& sh** divide opinions as to measures of safety. 

Much of this radicalism had identified itself with the oppo- 
sition to the war, and thereby been involved in prosecutions 
under the Espionage Act and the state laws. A few mem- 
bers of the Non-Partisan League were tried in the federal 
courts, and its leaders and several of the rank and file were 
convicted in Minnesota. Much use was made against Debs, 
Berger, and Mrs. O'Hare of the St. Louis Socialist platform, 
with its declaration for " continuous, active, and public 
opposition to the war, through demonstrations, mass peti- 
tions, and all other means within our power." Tlie Indus- 
trial Workers of the World had taken advantage of the 
nation's hour of need to withhold assistance which they felt 
under no obligation to give. Their position was stated to 
Carleton Parker in plain language by one of their chiefs. 

You ask me why the I.W.W. is not patriotic to the United 
States. If you were a bum without a blanket; if you had left 
your wife and kids when you went West for a job, and had 
never located them since; if your job never kept you long enough 
in a place to qualify you to vote; if you slept in a lousy, sour 
bimk-house, and ate food just as rotten as they could give you 
and get by with it ; if deputy sheriffs shot your cooking cans 
full of holes and spilled your grub on the ground ; if your wages 
were lowered on you when the bosses thought they had you 



LEGISLATION AGAINST SEDITION 163 

down; if there was one law for Ford, Suhr, and Mooney, and 
another for Harry Thaw; if every person who represented law 
and order and the nation beat you up, railroaded you to jail, 
and the good Christian people cheered and told them to go to 
it, how in hell do you expect a man to be patriotic? This war 
is a business man's war and we don't see why we should go out 
and get shot in order to save the lovely state of affairs that we 
now enjoy. 

Parker, Colonel Disque, and the President's Mediation Com- 
mission had striven with much success to bring these irre- 
concilables into the great stream of national effort. Others 
thought coercion a better method to end the dangerous 
menace of sabotage and the recurrent strike. W. D. Hay- 
wood and one hundred more members of the I.W.W. were 
convicted and imprisoned under long sentences for threats 
and designs of tangible obstruction to war work. 

This union of hostility to the war with strange economic 
and political doctrines set its mark on the later war legisla- 
tion. The amended Espionage Act of 1918 included the 
clauses about defamation of our form of government and cur- 
tailment of production which played such a prominent part 
in the Abrams case. A federal Sabotage Act was enacted. 
States punished the advocacy of syndicalism and sabotage in 
their war statutes or more often by separate acts. Much 
of this legislation extended automatically to peace-time 
utterances, and when it did not, it was easy and natural 
to adapt it for that purpose by the omission of a few mili- 
tary phrases. In the legislative sessions which followed the 
armistice, emergency laws against anarchy and criminal 
syndicalism were adopted by state after state with a coin- 
cidence of time and phraseology which proved either a uni- 
form danger throughout the country or the operation of 
M. Tarde's Laws of Imitation. 

This coercive legislation was held by Its supporters to 
have unanswerable justification in the succeeding outrages 
of 1919. A large number of bombs addressed to federal offi- 
cials and judges were seized in the mails, and the houses of 



164 FREEDOM OF SPEECH 

Attorney General Palmer and several other individuals 
prominent in sedition prosecutions and legislation were 
wrecked by explosions, one of which caused loss of life. 
There was much street fighting at May Day Parades in 
Boston and Cleveland, and a clash of very obscure origin 
between the I.W.W. and the American Legion in Centralia, 
Washington, resulted in the death of five ex-service men, 
four shot and one hunched. Meanwhile, the Department of 
Justice and a special Senate Committee to investigate Bol- 
shevism accumulated a mass of evidence on the large number 
of revolutionary periodicals and publications in the United 
States. 

The presence in our midst of new forces that make for 
disorder and violence renders it desirable to review the re- 
sources of our law for dealing with insurrection, bombs, and 
assassination, and to examine calmly recent and pending 
legislation to prevent the promotion of anarchy. The dis- 
ruption of our social and economic fabric by revolution, or 
even the continual recurrence of local outrages, would be so 
disastrous that they ought to be prevented in the wisest and 
most effective manner. Many persons take it for granted 
that any statute which is directed against those evils must 
be beneficial. That does not necessarily follow. If an emer- 
gency really exists, it behooves us all to keep cool, and con- 
sider with great care any new laws, and particularly the 
bills lately introduced in Congress, to see whether they are 
actually needed to combat the danger, whether they will 
really meet it, and whether in the haste and excitement of 
the moment our legislators may not be going much too far. 

This country has been able without any anarchy acts to 
cope with several insurrections like Shay's Rebellion and the 
Dorr War, a considerable amount of anarchy, and a great 
many turbulent strikes. May it not be that a wise and vig- 
orous enforcement of the ordinary criminal law will meet 
most, if not all, of the present danger? 



LEGISLATION AGAINST SEDITION 165 

I. The Normal Law Against Violence amd Revolution 

As far as state prosecutions are concerned, there has been 
very little need of specific legislation against anarchy and 
criminal syndicalism. Actual violence against government, 
life, and property is punishable everywhere. Those who 
plan or counsel such violence are liable even if they do not 
actively participate. When several policemen were killed by 
a bomb at the Haymarket in Chicago in 1886, Spies and 
other anarchists were convicted and executed though it was 
clear that some one else threw the bomb. Nor is it necessary 
that any criminal act shall take place. An unsuccessful 
attempt at a serious crime or a definite solicitation of 
another to commit it is punishable under the general criminal 
law. Chief Justice Morton of Massachusetts said in 1883, 
while upholding the sentence of one Flagg for urging another 
without success to burn down a barn : " It is an indictable 
offense at common law to counsel and solicit another to 
commit a felony or other aggravated offense, although the 
solicitation is of no effect, and the crime counseled is not 
in fact committed." Consequently the normal law of the 
states and the District of Columbia, apart from any legis- 
lation against anarchy, enables the police and the courts to 
deal vigorously with actual or threatened insurrection, explo- 
sions, or assassination.^ The persons of the President and 
other federal officials are protected by these laws in the 
District and the various states. Thus the assassin of 
President McKinley was convicted in New York. If it is 
felt to be safer that crimes against such men should also be 
subject to prosecution in the federal courts, it may be that 
Congress has power so to provide, since any injury to them 
would seriously impede the operation of the national gov- 

1 For purposes of illustration I have added in Appendix IV refer- 
erences to the normal law of four jurisdictions which have lately been 
alarmed over anarchy. If the law of any other state is incomplete, a 
definite provision as to criminal attempt or solicitation will meet the 
need far more wisely than the enactment of a vague and sweeping act 
against anarchy. 



166 FREEDOM OF SPEECH 

emment, although this is a question which requires subse- 
quent consideration. If such a statute can be constitu- 
tionally enacted, it should punish not only actual injuries 
to officials, but also unsuccessful attempts and incitement of 
others to commit such injuries, for such abortive conduct 
would not be criminal in the United States courts unless 
expressly made so.^ 

No Congressional legislation is needed to make criminal 
any scheme to overthrow the United States Government by 
bombs or any other means. A glance at the first eight sec- 
tions of the Federal Criminal Code suffices to prove this.' 
Levying war against the United States is treason punishable 
with death, and recruiting or enlisting for armed hostility 
against the United States is a serious crime. Conduct short 
of insurrection is penalized in section 6. " If two or more 
persons . . . conspire to overthrow, put down, or to 
destroy by force the Government of the United States, or to 
levy war against them, or to oppose by force the authority 
thereof, or by force to prevent, hinder, or delay the execu- 
tion of any law of the United States," they are each liable 
to six years in prison or $5,000 fine or both. It is of course 
well settled that conspiracy does not have to succeed to be 
punishable. All that is required is a common design to 
commit a crime, and some overt act in pursuance of the 
design. The act may be entirely innocent in itself, and may 
consist in speech or publication. If any further protection 
against threatened revolution is needed, it is furnished by 
section 37 of the Criminal Code, which punishes with severity 
conspiracy " to commit any offense against the United 
States." * 

2 Section 332 of the U. S. Criminal Code punishes one who " aids, 
abets, counsels, commands, induces or procures" a crime; but this sec- 
tion has only been applied to men who have aided in a crime which has 
actually been committed. It probably can not be used against unsuc- 
cessful incitement. U. S. v. Rogers, 226 Fed. 512, so holds, though 
there is a suggestion that the crime need not be committed in Billingsley 
V. U. S., 249 Fed. 331. Section 4 raises the same question. 

3U. S. Comp. Stat., 1918, §§ 10165-10172. 

4 Ibid., § 10201. 



LEGISLATION AGAINST SEDITION 167 

Section 6 of the Criminal Code was enacted during the 
Civil War and was thought adequate to meet the real dan- 
gers of the Reconstruction Period in the South. However, 
Attorney General Palmer, in asking Congress for a new sedi- 
tion law, alleges two defects in this section, which in his 
opinion destroy its usefulness in dealing with the present 
radical situation.^ First, the section is limited to con- 
spiracies and does not reach the isolated individual who 
threatens to overthrow the government. It may be a breach 
of the peace under state law but it is not now a federal 
crime if one man, all by himself, goes and hires a hall and 
tells his audience to start a revolution. This solitary talker 
was frequently held up at recent Congressional hearings as 
an example of existing danger to the country, until Mr. 
Alfred Bettman answered out of his long experience with 
sedition prosecutions during war service in the Department 
of Justice : ^ 

This man does it all by himself. Nobody encourages him. 
No organization supports or inspires him. He thinks up a 
rebellion all by himself. He hires a hall all by himself. No- 
body helps him pay for it. He makes his speech all by himself. 
Nobody introduces him. He makes his speech. And nothing 
happens. That is your case. Nothing happens. Well, nothing 
happens. 

Mr. Palmer's second objection grows out of a test case, in 
which Judge Hazel dismissed a prosecution under section 6 
against three members of the El Ariete Society, a Buffalo 
anarchistic organization, for the circulation of a Spanish 
manifesto. The Attorney General states that this manifesto 
" clearly constitutes an appeal to the proletariat to arise 
and destroy the government of the United States by force 
and substitute Bolshevism or anarchy in place thereof " ; 
and consequently that the failure of the prosecution shows 
that new legislation is necessary to meet such publications. 

5 Investigation Activities of the Department of Justice, 6. 

6 21 New Republic 314 (February 11, 1920). 



168 FREEDOM OF SPEECH 

The case cited does not justify any such conclusion/ (1) 
The defendants were not proved to have any substantial 
connection with the manifesto, so that the judge could not 
do anything but discharge them even if its language violated 
every section of the Criminal Code. (2) Judge Hazel ex- 
pressly found that the manifesto does not advocate the over- 
throw of the government by force. Undoubtedly it abuses 
the form of our government and its officials, advocates the 
organization of Soviets, anarchy, and the destruction of the 
institutions of society, " but there is nothing contained in it 
that advocates the destruction of society by the use of vio- 
lence, and it is open to the construction that it was designed 
to be sent out for the purpose of bringing about a change in 
the government by propaganda — ^by written documents.'* 

A circular which is part of any actual plot to overthrow 
the government by unlawful acts would be punishable under 
section 6. This is plainly shown, not only by Judge Hazel's 
reasoning, but also by another decision affirming a convic- 
tion under this section for a conspiracy to circulate pam- 
phlets advocating resistance to the execution by conscription 
of the war resolution of Congress.^ On the other hand, a 
statute applying to the Ariete manifesto would necessarily 
make it criminal to express economic views and aims dif- 
ferent from those which now prevail. Whether such legis- 
lation is desirable will soon be discussed, but clearly it is 
not needed to meet any present danger of revolution. If 
there is any real revolutionary plot to-day by Bolshevists, 
anarchists, or any one else, they can be tried, convicted, and 
sentenced to six years in prison under section 6 of the 
Criminal Code, and if this is not time enough a simple 
amendment of this section can make it longer. 

One other feature of the existing federal law deserves 
attention. The chief danger from anarchists arises through 

7 The opinion of Judge Hazel in this case (U. S. v. Aso) should be 
read in full on pp. 15-22, Investigation Activities of the Department 
of Justice, 

swells V. U. S., 257 Fed. 605 (C. C. A., 1919), See Chapter II, 
note 4. 



LEGISLATION AGAINST SEDITION 169 

the use of explosives, and if these are kept under federal 
control the country will be reasonably safe from bombs and 
dynamite. On October 6, 1917, Congress passed an elabo- 
rate statute making it unlawful, when the United States is 
at war, to manufacture, distribute, store, use, or possess 
explosives, fuses, detonators, etc., except under specified reg- 
ulations which include a requirement for a government li- 
cense given only after full information. This law was used 
during the war to impose sentences of eighteen months on 
bomb plotters who were shipping explosives without a li- 
cense.^ The statute is automatically suspended during peace, 
but Congress would do well to continue it, and could, it 
seems, accomplish this constitutionally under its powers to 
regulate interstate and foreign commerce and to conserve 
material needed for army and navy use. Under this statute 
it would be practically impossible for unauthorized persons 
to secure enough explosives to cause extensive damage. 

With these suggested amendments to the federal statutes 
to protct the lives and persons of United States officials and 
regulate the use of explosives in peace, the normal law will 
be entirely adequate to guard us against dangerous anarchy. 
Violence, direct and dangerous provocation to violence, and 
conspiracies to bring about violence will be severely punished, 
and the instruments of outrage will be removed. 

II. The Normal Criminal Law of Words 

I have dwelt at such length upon the ordinary law in 

order to make it clear that the so-called anarchy acts, 

insofar as they are not unnecessary duplication of that law, 

go far beyond it and impose an entirely different test of 

criminality. To restate the matter in accordance with the 

reasoning in the first chapter, the normal criminal law is 

interested in preventing crimes and certain non-criminal 

interferences with governmental functions like refusals to 

enlist or to subscribe to bonds. It is directed primarily 

9U. S. Comp. Stat., 1918, §§3115% a, ff.; Inspector Thomas J. 
Tunney, in Bolshevik Propaganda, 28. 



170 FREEDOM OF SPEECH 

against actual injuries. Such injuries are usually committed 
by acts, but the law also punishes a few classes of words 

/ like obscenity, profanity, and gross libels upon individuals, 
because the very utterance of such words is considered to 
inflict a present injury upon listeners, readers, or those de- 
famed, or else to render highly probable an immediate breach 
of the peace. This is a very different matter from punishing 
words because they express ideas which are thought to cause 
a future danger to the State. 

Undoubtedly, the existence of these verbal peace-time 
crimes subjects the argument of my first chapter to an acid 
test. They are too well-recognized to question their consti- 
tutionality, but I believe that if they are properly limited 
they fall outside the protection of the free speech clauses as I 
have defined them. My reason is not that they existed at 
common law before the constitutions, for a similar argument 
would apply to the crime of sedition, which was abolished by 
the First Amendment. The existence of a verbal crime at 
common law shows the presence of a social interest which 
must be weighed in the balance, but the free speech guar- 
anties, as I have argued at length, enact a countervailing 
social interest in the attainment and dissemination of truth, 
which was insufficiently recognized by the common law. 
Nor do I base my conclusion on the historical fact that the 
framers of the constitutions wanted to safeguard political 
discussion, because their own statements of freedom of 

1/ speech in the address to the people of Quebec, the Virginia 
Toleration Statute, and the opening clause of the First 
Amendment itself, prove that they also wanted to safeguard 
scientific and religious freedom, both of which would be 
greatly restricted by a sweeping application of the common 
law of obscenity and blasphemy. The true explanation is, 
that profanity and indecent talk and pictures, which do not 
form an essential part of any exposition of ideas, have a 
very slight social value as a step toward truth, which is 
clearly outweighed by the social interests in order, morality, 
the training of the young, and the peace of mind of those 



LEGISLATION AGAINST SEDITION 171 

who hear and see. Words of this type offer little oppor- 
tunity for the usual process of counter-argument. The 
harm is done as soon as they are communicated, or is liable 
to follow almost immediately in the form of retaliatory vio- 
lence. The only sound explanation of the punishment of 
obscenity and profanity is that the words are criminal, not 
because of the ideas they communicate, but like acts because 
of their immediate consequences to the five senses. The man 
who swears in a street car is as much of a nuisance as the 
man who smokes there. Insults are punished like a threat- 
ening gesture, since they are liable to provoke a fight. 
Adulterated candy is no more poisonous to children than 
some books. Grossly unpatriotic language may be punished 
for the same reasons. The man who talks scurriously about 
the flag commits a crime, not because the implications of his 
ideas tend to weaken the Federal Government, but because the 
effect resembles that of an injurious act such as trampling 
on the flag, which would be a public nuisance and a breach 
of the peace. Tliis is a state but not a federal crime, for 
the United States has no criminal jurisdiction over offenses 
against order and good manners, although Congress may 
possibly have power to regulate the use of the national em- 
blem. It is altogether different from sedition. 

The absurd and unjust holdings in some of these prosecu- 
tions for the use of indecent or otherwise objectionable lan- 
guage furnish a sharp warning against any creation of new 
verbal crimes. Thus, the test of obscenity is very vague, and 
many decisions have utterly failed to distinguish nasty talk 
or the sale of unsuitable books to the young from the serious 
discussion of topics of great social significance. The white 
slave traffic was first exposed by W. T. Stead in a magazine 
article, " The Maiden Tribute." The English law did abso- 
lutely nothing to the profiteers in vice, but put Stead in 
prison for a year for writing about an indecent subject.^" 

10 For a division among judges whether a book was indecent, see 
People V. Eastman, 188 N. Y. 478 (1907). The Bibliography contains 
references on this class of crime. 



172 FREEDOM OF SPEECH 

When the law supplies no definite standard of criminality, 
a judge in deciding what is indecent or profane may con- 
sciously disregard the sound test of present injury, and pro- 
ceeding upon an entirely different theory may condemn the 
defendant because his words express ideas which are thought 
liable to cause bad future consequences. Thus musical 
comedies enjoy almost unbridled license, while a problem 
play is often forbidden because opposed to our views of 
marriage. In the same way, the law of blasphemy has been 
used against Shelley's Qtieen Mab, and the decorous promul- 
gation of pantheistic ideas, on the ground that to attack 
religion is to loosen the bonds of society and endanger 
the state.^^ This is simply a roundabout modern method 
to make heterodoxy in sex matters and even in religion a 
crime. A Washington decision punishing a man for a news- 
paper article tending to defame George Washington is a 
serious restriction on historical writing.^^ Furthermore, 
the breach of the peace theory is peculiarly liable to abuse. 
It makes a man a criminal simply because his neighbors have 
no self-control and cannot refrain from violence. The 
reductio ad ahsurdum of this theory was the imprisonment 
of Joseph Palmer, one of Bronson Alcott's fellow-settlers at 
" Fruitlands," not because he was a communist, but because 
he persisted in wearing such a long beard that people kept 
mobbing him, until law and order were maintained by shut- 
ting him up.^^ A man does not become a criminal because 
some one else assaults him unless his own conduct is in itself 
illegal or may be reasonably considered a direct provoca- 
tion to violence.^* Thus all these crimes of injurious words 
must be kept within very narrow limits if they are not to 
give excessive opportunities for outlawing heterodox ideas. 

"Austin W. Scott, "The Legality of Atheism," 31 Harv. L. Rev. 
289 (1917). 

12 People V. Haffer, 94 Wash. 136 (1916), under statute. Even such 
a conservative as Dr. Johnson opposed liability for defamation of the 
dead. 

13 Clara E. Sears, Bronson Alcott's Fruitlands, c. IV. 

14 See the subsequent discussion of the right of assembly. 



LEGISLATION AGAINST SEDITION 173 

Besides these special classes of words which cause present 
injury, the normal law punishes speech which falls short 
of injury as an attempt or solicitation, but the first chapter 
has shown that this is only when the words come somewhere 
near success and render the commission of actual crime or 
other tangible obstruction of state activities probable unless 
the state steps in at once and penalizes the conduct before 
it ripens into injury. The law of attempts and solicitation 
is directed not against the words but against acts, and the 
words are punished only because that is the necessary way 
to avoid harmful acts. When A urges B to kill C and tells 
him how he can do it, this has nothing to do with the attain- 
ment and dissemination of truth, and besides there is 
genuine danger that the murder will take place long before 
discussion will prove it to be a mistaken scheme. 

The two conspiracy cases mentioned in connection with 
the federal Criminal Code bring out neatly the boundary of 
the normal criminal law. The anti-draft pamplilets fell 
within its range because of the danger created by their lan- 
guage and the surrounding circumstances, and although 
unlike solicitations to murder they served a social interest in 
criticising the pohcies of the war, this was outweighed by 
the pressing peril to the social interest in the enforcement 
of war legislation. On the other hand, the Ariete manifesto 
was simply intemperate discussion of fundamental economic 
and political questions, and even if it had a remote tendency 
to injure the country by causing a revolution some day there 
was obviously plenty of time to present the other side before 
the revolution arrived. 



III. The Difference Between the Normal Law and the 
New Legislation 

We have seen and heard of revolutions in other States. Were 
they owing to the freedom of popular opinions ? Were they owing 
to the facility of popular meetings? No, sir, they were owing 



174 FREEDOM OF SPEECH 

to the reverse of these ; and therefore, I say, if we wish to avoid 
the danger of such revolutions, we should put ourselves in a state 
as different from them as possible. — Charles James Fox, 1795. 

The existing law protects us from dangerous anarchy, but 
the anarchy acts reach out to the futile soap-box orator 
who advocates violence and in most cases to the Ariete 
manifesto which does not. These statutes are not directed 
against those who commit or actually plan violence, but 
against those who express or even hold opinions which are 
distasteful to the substantial majority of citizens. Some 
of them are so sweeping as to suppress agitation which is 
neither dangerous nor anarchistic. The people may be led 
to accept such statutes because they fear anarchy, but they 
will soon find that all sorts of radical and even liberal views 
have thereby become crimes. These acts have been drafted 
by men who are so anxious to avoid any disturbance of law 
and order that they have punished by long prison terms and 
heavy fines not only provocation to the use of force, but also 
the promulgation of any ideas which might possibly if 
accepted cause some one to use force. 

In the past the American law has shown little sensitive- 
ness to revolutionary utterances in time of peace, and has 
wisely treated most fulminations against the social fabric like 
a pot-shot at a man ten miles away. However, as Judge 
Hand pointed out,^^ all vigorous criticism of the form of 
government or the economic system or particular laws may 
by arousing passion or engendering conviction of the iniquity 
of existing conditions lead indirectly to violence. Even an 
ardent oration urging the repeal of a statute may lead 
hearers to disobey it. We are always tempted to apprehend 
such results from opinions to which we are opposed. It is 
easy to believe that doctrines very different from our own 
are so objectionable that they could only come into opera- 
tion through force, so that their advocates must necessarily 
favor criminal acts. The difference between the expression 
of radical views and direct provocation to revolution is only 

15 See p. 60, supra. 



LEGISLATION AGAINST SEDITION 175 

a difference of degree, but it is a difference which the normal 
criminal law regards as all-important. 

There are always men who want the law to go much 
farther and nip opinions in the bud before they become dan- 
gerous because they may eventually be dangerous. Thus, when 
Colley Gibber produced his adaptation of " Richard III," 
the Master of the Revels expunged the whole first act, fear- 
ing that the distresses of Henry VI would put weak people 
too much in mind of James II, also exiled in France.^® Such 
an attitude is particularly common in a period of unrest like 
the present, especially during a foreign revolution or after 
assassinations, when coercion and violence follow each other 
in a vicious circle. We have seen how George Ill's judges 
transported men who wanted to abolish rotten boroughs and 
the limited franchise, because if the people of Great Britain 
possessed the same privileges as the French they might 
destroy the Constitution and imitate the Reign of Terror. 
Restoration France, after the assassination of the Due de 
Berri, passed a law to suppress any journal " if the spirit 
resulting from a succession of articles would be of a nature 
to cause injury to the public peace and the stability of con- 
stitutional institutions." It was only with the disappear- 
ance of these proces de tendance that the press once more 
became free, and under the Republic one can urge a change 
in the form of government to monarchy or empire with 
impunity.^^ 

Abolition of slavery could never be mentioned in the ante- 
bellum South because it might cause a negro uprising. A 
similar sensitiveness to possible bad results led to the pro- 
hibition of " Mrs. Warren's Profession " and " September 
Morn." Since almost any opinion has some dangerous tend- 



16 3 Johnson's Lives of the Poets (ed. G. B. Hill), 292 note. 

17 A. Esmein, tlUments de Droit Constitiitionnel, 6 ed., 1145, 1149; 
Ernst Freund in 19 Neio Republic 14 (May 3, 1919). In the same way 
the New York post-office objected to the general tenor and animus of 
the Masses as seditious without specifying any particular portion as 
objectionable, although the periodical offered to excerpt any matter so 
pointed out. Masses Pub. Co. v. Patten, 244 Fed. 635, 636, 543 (1917). 



176 FREEDOM OF SPEECH 

encies, it is obvious that its suppression on that account puts 
an end to thorough discussion. Writings which do not actu- 
ally urge illegal acts should never be made criminal except 
perhaps in great emergencies like war or revolt when the mere 
statement of the author's view creates a clear and present 
danger of injurious acts. In time of peace the limitation of 
the punishment of speech to direct provocation to crime is 
the essential element of the freedom of the press. 

The normal criminal law is willing to run risks for the 
sake of open discussion, believing that truth will prevail 
over falsehood if both are given a fair field, and that argu- 
ment and counter-argument are the best method which man 
has devised for ascertaining the right course of action for 
individuals or a nation. It holds that error is its own cure 
in the end, and the worse the error, the sooner it will be 
rejected. Attorney General Gregory has defended the Es- 
pionage Act on the ground that propaganda is especially 
dangerous in a country governed by public opinion.^* I 
believe this to be wholly wrong. Free discussion will expose 
the lies and fallacies of propaganda, while in a country 
where opinion is suppressed propaganda finds subterranean 
channels where it cannot be attacked by its opponents. 

Russia under the Czar took no risks. It was afraid to 
wait for a clear and present danger of violence. It put the 
ax to the root of the tree. Five powerful methods were 
developed to reach anarchy and revolution in their earliest 
stages. The government censored and suppressed books and 
periodicals ; it raided houses and seized men and their papers 
without process ; it prosecuted them for their expression of 
opinions and for their membership in radical societies; it 
deported them to Siberia or abroad; it devised ingenious 
methods of weeding them out of the Duma. 

These are not American methods. During the whole of 
the nineteenth century, not one of them was used against 
radicals in the United States. It is the American habit to 
take a chance on queer and objectionable opinions. Roger 
Williams did it when he discarded religious qualifications for 

18 Report of the Attorney General, 1918, 21. 



LEGISLATION AGAINST SEDITION 177 

office and citizenship, which even England was afraid to 
abandon wholly for another two hundred and fifty years. 
It is easy for us to forget now what a tremendous risk the 
founder of Rhode Island was thought to run and did run 
in those days of wild beliefs. The " livelie experiment " of 
religious freedom described in the Charter, which it was 
much on his heart to hold forth, was a very lively experi- 
ment indeed in its early years. And in the past the same 
courage has marked our policy toward radicalism. Anarchy 
and communism are nothing new in this country, — we have 
had them in all varieties, foreign and domestic, since the 
days of Brook Farm until we lived safely through thirty- 
four years of Emma Goldman. The normal law, which re- 
frains from punishing words for their bad political tend- 
ency, has carried us through far worse crises than the 
present. In the midst of the great railroad strikes of 1877, 
when unemployment was larger than ever before or since, a 
big communist meeting was permitted in New York. The 
Seventh Regiment was kept in a conspicuous readiness to 
put down any actual disorder, but there was no interference 
with anything that was said. The speakers indulged in the 
wildest kind of talk, but it fell flat on the meeting just be- 
cause there was no chance for a row.^^ Arthur Woods used 
the same wise policy when he became police commissioner of 
New York City during the hard times of the summer of 
1914. Under his predecessor the police had been breaking 
up anarchistic meetings in Union Square every Saturday 
afternoon and the feeling was excited, defiant, and bitter. 
Threats were not disguised that since the police had " acted 
like agents of the capitalists," the crowds would come next 
time prepared to answer clubs and revolvers with bombs. 
Mr. Woods took office, and told the police to interfere in 
any actual disturbance, but not otherwise. Next Saturday, 
a large force of police was held within available distance, 
and a hundred plain-clothes men were scattered singly 
through the meeting, on the watch for signs of violence so 
that they could nip any attempt in the bud, but beyond 
18 J. F. Rhodes, History of the United States, VIII, 41. 



178 FREEDOM OF SPEECH 

that they were only to try to maintain an atmosphere of 
quiet and calm and radiate good nature. Mr. Woods says : 

The change of method was almost unbelievably successful. 
There was no disorder; the crowd was very large but very well 
behaved, and at the end of the meeting when everything was over 
and many had gone home, three cheers were proposed and given 
for the police.^" 

This courage, this tolerance, this friendly co-operation 
between government and people, with its visible creation of 
loyalty, this is the true Americanism. And the issue before 
us to-day is whether in a period of prosperity and tremen- 
dous demand for labor we shall throw overboard the Ameri- 
can laws and the American methods which carried us safely 
through the turbulent early years of our history, through 
Reconstruction, through panics and Populism with its wide- 
spread agitation among the native-born population, and 
shall now shaking and shivering in every wind of doctrine 
that blows from Bolshevist Russia imitate even in part any 
of the five methods with which Czarist Russia fought radi- 
calism up to the day of her stupendous ruin. 

To this issue in its various aspects I shall devote the 
remainder of my book. 

The interpretation of freedom of speech which I have en- 
deavored to establish in the opening chapter applies in 
peace as in war. The various interests, individual and social, 
must once more be balanced against one another with full 
regard to the social interests in progress and the attainment 
and dissemination of truth. The resultant boundary-line 
of permissible speech is drawn back of the point where overt 
acts of injury to the state occur but not far from that point. 
The test laid down by the United States Supreme Court 
in the Schenck case still holds good: 

The question in every case is whether the words used are used 
in such circumstances and are of such a nature as to create a 
clear and present danger that they will bring about the sub- 

20 Arthur Woods, Policeman and Public, 73-78. Equally typical of 
American methods is his account of the meeting in Bowling Green Park. 



LEGISLATION AGAINST SEDITION 179 

stantive evils that Congress (or the state legislature) has a right 
to prevent. 



The power of the government to restrict discussion is 
undoubtedly less in time of peace than in time of war be- 
cause war opens dangers that do not exist at other times. 
The strength of the state in war time is chiefly occupied in 
fighting the enemy. In a great war the chances of success 
are uncertain, and a slight set-back due to hostile opinion 
at home may cause defeat. It is hard enough for the gov- 
ernment to resist the human desire not to enlist and not to 
fight, without outside incitement from adverse views of the 
war. Thus, there are very plausible reasons for limiting 
the social interest for which I earnestly contend, the need 
of continuous contact with the facts and with sound con- 
clusions. In peace, however, the social interest mainly 
affected by discussion is not the sorely-beset endeavor to 
save the country from a powerful enemy, but the interest 
in order. With this interest the mass of the population 
earnestly sympathizes. It is protected by an enormous body 
of otherwise unoccupied police and soldiers, who are now 
available to check any actual violence. This interest in 
order is not opposed by troops and guns from abroad but 
only by words, which it can afford to tolerate, confident in 
the support of public opinion. In war an evil and wholly 
unfounded opposition at home may upset the state. In 
peace, those who love disorder for its own sake are so few 
that a revolution is improbable unless there are very strong 
reasons for discontent. If the agitation is without merit 
the state can afford to ignore it. If it has merit the state 
cannot afford to suppress it without a hearing. Conse- 
quently, in peace governmental interference should be de- 
layed as in the New York meeting of 1877 until the last pos- 
sible moment before violence occurs. 

Sometimes in peace other social interests besides order 
come into play and strengthen the case for restriction. 
Thus, the interest in morals is concerned with moving-picture 



180 FREEDOM OF SPEECH 

plays and books for the young. Street meetings may inter- 
fere with the public traffic besides causing a greater proba- 
bility of violence than do books. Once more, it is a ques- 
tion of balancing the interests, and it may be worth while 
to arrange for meetings in less-used side streets in the noon- 
hour or in specified public parks, even at some sacrifice of 
traffic. After all, a democracy may wisely refuse to regard 
the streets only as a place where people exercise and go out 
to make money. Parades and soap-box orators and big 
meetings make them an open-air school, which prepares di- 
rectly for citizenship. 

The anarchy acts are the first break with the American 
tradition. Most of them are not willing to run any risks 
as to opinions generally considered objectionable, but make 
opinions in themselves and for their own sake a crime, 
although there is no direct and dangerous interference with 
order and only a remote possibility that violence will ensue. 
The first chapter has shown the evils of bad political tend- 
ency as a test of criminality. These statutes in large part 
revive that test, and are not directed against bad acts, but 
are designed to protect the minds of grown men and women 
from bad talk and bad thoughts. 

IV. Radical Meetmgs and the Red Flag 

There are several types of anarchy acts.^^ The simplest 
is the red flag law, recently adopted by twenty-five states. 
The New York statute ^^ makes it a misdemeanor to display 
the banner " in any public assembly or parade as a symbol 
or emblem of any organization or association, or in further- 
ance of any political, social, or economic principle, doctrine 
or propaganda." Other states go much further and forbid 
the display of the red flag anywhere. Some shrewdly guard 
against the wearing of red neckties or buttons or the evasive 

21 All the state legislation mentioned in this chapter is listed in Ap- 
pendix V. 

22 N. Y. Laws, 1919, c. 409. 



LEGISLATION AGAINST SEDITION 181 

adoption of a green flag ^^ by punishing the use of any 
emblem of any hue if it is " distinctive of bolshevism, 
anarchism, or radical socialism " ; ^* or is " suggestive of any 
organized or unorganized group of persons who by their 
rules, creeds, purposes, practices, or efforts, espouse any 
theory or principle antagonistic to or subversive of the con- 
stitution or its mandates " ; ^^ or if it is employed with some 
other revolutionary intent. In West Virginia imprisonment 
for a year (five years for the second offense) may be imposed 
for the possession of any red or black flag, or the display 
of " any emblem of any nature whatever indicating sym- 
pathy or support of ideals, institutions, or forms of govern- 
ment, hostile, inimical, or antagonistic to the form or spirit 
of the constitution, laws, ideals, and institutions of this 
state or of the United States." ^® It is plain to any lawyer 
that when a vague and very wide range of commonplace 
and harmless conduct is made criminal merely on the basis 
of a bad intention, a man is condemned for his thoughts 
and nothing else. He may never have expressed those 
thoughts until they were brought out under cross-examina- 
tion in a sedition trial. He is convicted simply by the jury's 
guess at the inside of his head. Men should be punished for 
what they do and not for what they think. 

The way in which the red flag causes disorder is explained 
by Inspector Thomas J. Tunney, who played such a 
prominent part in the Abrams case and certainly cannot be 
considered unduly favorable to radicals : ^^ 

Senator OVERMAN. What effect does that red flag have 
on a crowd? 

Mr. TUNNEY. It has the effect of creating a feeling on the 
part of Americans that they would like to assassinate everybody 
carrying the red flag; or at least, a large number of them feel 
that way. 

23 Testimony of Inspector Tunney and Raymond Robins, in Bol- 
ihevik Propaganda, 11, 838. 

24 Kans., Laws, 1919, c. 184. 

25 Wash., Laws, 1919, c. 181. 

26 W. Va., Laws, 1919, c. 24. 

27 Bolshevik Propaganda, 10, 11. 



182 FREEDOM OF SPEECH 

Senator OVERMAN. What effect does it have on the people 
who are in sympathy with carrying the red flag? 

Mr. TUNNEY. It simply enthuses them, and they indulge in 
cheering and waving it in the air. 

The Roxbury Riot of last May ^® is a practical demonstra- 
tion of his statements and also illustrates some interesting 
points in the law of assembly. An unprejudiced account in 
the Boston Herald relates that the trouble was caused by 
the appearance of a red flag carried at the head of a large 
group of members of the Lettish Workmen's Association, 
who were marching from one meeting to another in a dif- 
ferent hall. If this was a parade, it was illegal, for they 
had no permit, but no red flag law was in force. The ac- 
count continues : " Everywhere in Roxbury small groups of 
men and boys were to be seen strolling along the streets 
armed with clubs and pieces of iron bar and pipe. It was 
difl^cult for the police to cope with every group for as fast 
as one would be dispersed another would gather. Nearly 
everybody with a facial indication of being a Lett or a Rus- 
sian was attacked. It was useless for them to offer excuses 
for none were listened to. . . . As soon as it became gen- 
erally known that the presence of a red flag was the cause 
of all the trouble soldiers and sailors began taking a hand. 
Each group carried at least one sailor or soldier and they 
inflicted severe punishment on the men in the parade or 
those discovered hiding in stores and houses afterwards." 

Either just before the attack on the marchers began or 
soon afterwards, it is hard to tell which from the tumul- 
tuous testimony, the police demanded a permit and ordered 
the parade to disperse. They replied with cat-calls, and in 
the three-cornered disturbance that followed between radi- 
cals, patriots, and police, two policemen were injured. A 
large number of marchers received sentences of six to 
eighteen months in the Municipal Court for participating 

2S Boston Herald, May 2, 1919; trials in ibid., May 6, 8, 14; letter 
of adverse comment, ibid., May 16. Convictions upheld, Comm. v. Frish- 
man, 126 N. E. (Mass.) 838 (1920). 



LEGISLATION AGAINST SEDITION 183 

in a riot or assaulting the police, and several of them have 
since been convicted by juries, but so far as I can ascertain 
none of their assailants was even tried. 

These cases raise several questions of general interest as 
to the legality of radical meetings. ^^ The radicals took the 
position that no permit was necessary to enable men to walk 
from one place to another, but only for an organized 
parade. Of course, the social interest in traffic already 
mentioned gives the city power to forbid unlicensed proces- 
sions, but there is some question whether this particular 
body of people was not itself a part of traffic, without need 
for a permit. For example, is a license required for col- 
legians to march from the stadium to the yard after a foot- 
ball victory with a red flag at their head? These are ques- 
tions of fact for the jury. However, even if this gathering 
of Roxbury radicals had not been held illegal by the Massa- 
chusetts Supreme Court for want of a permit, it may well 
be that the order to disperse was valid on other grounds. 
Three such grounds have been suggested. 

(1) Since any gathering of radicals is likely to be at- 
tacked, the easiest way to preserve the peace is to forbid 
and break up such gatherings. Therefore, it may be con- 
tended that a meeting which is not otherwise illegal may 
become so solely because it will excite violent and unlawful 
opposition. This is the doctrine of the long-beard case 
over again. Let us see how it works out with respect to 
meetings. The Salvation Army holds a service in a public 
place, knowing that a mock-organization called the Skeleton 
Army intends to molest it. The Skeleton Army appears, 
and begins to throw stones. The members of the Salvation 
Army are arrested by the police for holding an unlawful 
assembly. Obviously they must be released. Their guilt 
cannot be determined by the intolerance of wrong-doers. 

29 See Dicey, Law of the Constitution, c. VII, " The Right of Public 
Meeting," also my Bibliography. The Salvation Army case is Beatty v. 
Gillbanks, 9 Q. B. D. 308 (1882). German opera riots, Star Opera v. 
Hvlan, 109 N. Y. Misc. 132 (1919). Opposed to my view of red flag 
riots, P. V. Burman, 154 Mich. 150 (1908). 



184 FREEDOM OF SPEECH 

Apart from the question of permits, and special regulation 
by ordinances and statutes, the police cannot treat a meet- 
ing as unlawful simply because it may probably or natu- 
rally lead others to attack it. And if a permit is refused 
on that ground alone, a small number of intolerant men by 
passing the word around that they intend to start a riot 
can prevent any kind of meeting, not only of radicals who 
want a revolution, but of socialists, of moderates like the 
Committee of '48, of negroes, of novel religious sects, of 
free-masons in an anti-masonic community. Indeed, on any 
such theory a gathering which expressed the sentiment of 
a majority of law-abiding citizens would become illegal be- 
cause a small gang of hoodlums threatened to invade the 
hall. The proper remedy for these emergencies is police pro- 
tection, to which men are entitled in public places, whether 
they are there singly or in groups. 

(2) There is, however, a well-recognized exception to 
this principle. If the meeting is going to cause trouble, not 
just because of the unpopularity of its views but because it 
expresses them in offensive ways, it may be unlawful per se. 
This is an analogy to the verbal crimes already discussed. 
For example, the " Pillars of Fire " were not allowed by the 
Mayor of Plainfield, New Jersey, to hold street meetings 
for abusing Roman Catholics. They must hire a hall where 
no one would be forced to listen to them. It is sometimes 
supposed that a parade displaying the red flag is illegal at 
common law for the same reason that it would be if it car- 
ried an abusive caricature of the Pope, but the situations 
are not truly parallel. The red flag is not offensive in 
itself. Nobody minds it at an auction sale or a railroad 
crossing. The onslaught is not on an object but on the 
unpopular ideas of those who carry it, because most of us 
consider that such ideas have a tendency to produce injury 
in the future. This only brings us back to the first point, 
that a meeting is not illegal just for unpopularity. Bad 
tendency must not be a test of criminality. Thus, the Rox- 
bury marchers were not violating the law because of the red 



LEGISLATION AGAINST SEDITION 185 

flag. On the other hand, their loud cries of, " To Hell with 
the Police ! Hurrah Bolsheviki ! To Hell with the American 
flag ! " were so provocative of disorder as to render the 
parade unlawful even if a permit had been issued. 

(3) Finally, after the order to disperse was given the 
gathering was undoubtedly illegal. That order was valid 
under a second exception to the general principle that un- 
popular meetings are not illegal meetings. Where a meet- 
ing which is originally lawful and inoffensive has in spite of 
this produced a disturbance, so that the only way 
to restore the peace is to put an end to the meeting, 
then there is a clear and present danger which justifies the 
suppression of ideas on this occasion. By the time the 
police arrived in the Roxbury affair, it was evident that the 
parade could not continue without a riot. Consequently, 
those who resisted or refused to obey the order thereby broke 
the law. 

One more lesson of general application may be drawn 
from this incident, the danger that men of peculiar views 
who are charged with definite tangible crimes may be con- 
demned in reality not for what they do but for what they 
think. Three clear offenses were possibly committed by the 
defendants, parading without a permit, assaulting police- 
men, and remaining in the parade after the order to dis- 
perse. Every one of these issues is a pure question of fact, 
on which the opinions of the defendants had not the slightest 
bearing. Yet the Municipal Court Judge, instead of limit- 
ing the examination of the prisoners to the question, " Did 
you do this on May 1 ? " himself inquired at length whether 
they believed in God, approved of Soviets, or agreed with 
what the American flag stands for. In the same way, when 
the cases came before a jury in the autumn, the district 
attorney gave the impression that he was trying the pris- 
oners, not for what they did in May, but for what they 
thought in October. And in the Municipal Court, the red 
flag, although it violated no statute, was clearly treated as 
an offense. The judge said: "The red flag means revolu- 



186 FREEDOM OF SPEECH 

tion, nothing else, and the day for the red flag is past in 
America. It means bloodshed; it cannot be interpreted 
otherwise. . . . Waving a red flag is a breach of the 
peace." 

The policy behind even the mildest form of the red flag 
legislation resembles the rule of the British Government that 
the Uganda tribes must not wear war-paint except on the 
chief's birthday. If Americans cannot be trusted any more 
than African natives to avoid the psychological effects of 
color, well and good. So far, the exact meaning of the red 
flag seems rather obscure. Some say it stands for bloody 
revolution,^*' and others, the brotherhood of workingmen 
throughout the world.^^ It might be desirable to find out 
which is right before we forbid it. There is no doubt that 
its display on May Day, 1919, was accompanied by much 
lawlessness — chiefly on the part of the supporters of law and 
order. Until the opponents of force can restrain themselves 
from mobbing any parade which carries a red flag, it may be 
wise to prohibit its use. We ought to remember, however, 
that if it is made a forbidden symbol its emotional appeal 
when displayed in secret is immeasurably heightened. The 
resentment caused by such laws, which assert any sugges- 
tion of revolutionary action to be a heinous off'ense, will not 
be lessened by the recent respect paid by mayors, governors, 
and legislators to an acknowledged banner of revolution, the 
green, white, and yellow of Ireland. Once we admit that 
violence may be a justifiable mode of political action in 
another country which has the ballot and representative 
government, we cannot consistently make men outlaws 
merely for holding a similar theory in this country, however 
much we disagree with them. Massachusetts once had a 

30 Besides quotation above, see Rugg, C. J., in Comm. v. Karvonen, 
219 Mass. 30 (1914). 

31 This is the explanation of all radicals whom I have questioned. 
See testimony of William Sidis in Boston Herald, May 14, 1919. This 
is confirmed by the expert and conservative opinion of Professor Samuel 
N. Harper, Bolshevik Propaganda, 101 : " I think it is little more than 
a tradition . . . representing this mental protest . . . against what 
they consider the injustices of the present organization of society." 



LEGISLATION AGAINST SEDITION 187 

law prohibiting a red or black flag. This was declared con- 
stitutional/^ and then repealed because it made the Harvard 
crimson illegal. It is to be hoped that other portions of this 
land of the brave will also be willing to face valiantly a piece 
of cloth. There is much merit in the North Dakotan remark 
that the only animal that is afraid of a red flag has a fence 
around him. 

The man who insists on waving the red flag on all occa- 
sions has just as little common sense. Those who want to 
remake society on a basis of fellowship and mutual agree- 
ment may fairly be asked to begin by yielding something to 
the wishes of their neighbors. It is an undoubted fact that 
most people do dislike seeing the red flag in a parade or 
over a building, but if the Stars and Stripes are beside it 
nearly all their objection vanishes. A decent respect for 
the opinions of mankind ought to lead the radical to do this 
much for the happiness of others. Even if he is so thor- 
oughly a man without a country that he has no attachment 
for the government which guards his home and educates his 
children, at least like a foreign vessel in our ports he might 
out of courtesy raise our banner beside his own. I do not 
believe that a man should be arrested for carrying a solitary 
red flag in the street any more than for wearing a sweater 
at a dance, but ordinary politeness ought to keep him from 
doing either. Surely, it is worth while for the radical to 
take the conciliatory step I suggest, and thus produce a 
friendlier atmosphere in the mass of the population, which 
may gain converts for his views and will certainly induce 
many thoughtful men to co-operate with him in the more 
moderate of his schemes for a better world. 

V. Criminal Anarchy and Criminal Syndicalism 

A much more important group of statutes takes its origin 
from the New York Anarchy Act of 1902, which was enacted 
soon after the assassination of President McKinley 

32 Comm. V. Karvonen, supra. 

33 N. Y. Penal Law, 1918, §§ 160-166. 



33 



188 FREEDOM OF SPEECH 

Criminal anarchy is there defined as " the doctrine that 
organized government should be overthrown by force or vio- 
lence, or by assassination . . ., or by any unlawful 
means." It is a felony to advocate this doctrine by speech 
or writing, and to join any society or any meeting for teach- 
ing or advocating it. The act can be rigorously enforced, 
because the owner or person in charge of any room or 
building who knowingly permits a meeting therein is severely 
punished, and the editor or proprietor of a periodical or 
pubHsher of a book which contains anarchistic matter is 
liable unless it was printed without his knowledge and 
authority and disavowed immediately. This statute lay idle 
for nearly twenty years,^* but there have been several prose- 
cutions in the last few months. Especially significant is 
the sentence of Benjamin Gitlow, a former Socialist mem- 
ber of the New York Assembly, to an imprisonment of five 
to ten years, under a ruling of Justice Weeks that the 
advocacy of a general strike without any direct reference 
to force, violence, or unlawful means is criminal anarchy, 
because it is camouflaged revolution.^^ The Washington 
statute of 1909 is very similar, but also makes it criminal 
to circulate any document having a tendency to encourage 
the commission of any breach of the peace or disrespect for 
law or any court. The ridiculous possibilities of such legis- 
lation are proved by the conviction of one Fox for encourag- 
ing disrespect for law by an article, " The Nude and the 
Prudes," declaring bathing suits superfluous. Justice Holmes 
found nothing unconstitutional in the prosecution, but 
caustically remarked, " Of course, we have nothing to 
do with the wisdom of the defendant, the prosecution, 
or the act." ^^ The first danger to be avoided in legis- 
lation against anarchy is the imposition of heavy penal- 

34 The only case is a slander suit, in which " anarchist " was held a 
charge of crime. Von Gerichten v. Seitz, 94 App. Div, 130 (1904). 

35 Boston Transcript, February 17, 1920. House Judiciary Hearings, 
166. 

36 Wash. Laws, 1909, c. 249, §312; State v. Fox, 71 Wash. 185 
(1912); Fox V. Washington, 236 U. S. 273 (1915). 



LEGISLATION AGAINST SEDITION 189 

ties for slight offenses. Such penalties create that very 
hatred of our system of laws which it is our object to 
avoid. 

Another pre-war statute, in New Jersey, punishing the 
advocacy of unlawful destruction of property or injury to 
persons, is much more restricted in its scope, and has been 
construed to enact the common law of criminal solicitation 
with an increased penalty. It was used to punish labor 
leaders in Paterson who urged clubbing strike-breakers out 
of the silk mills and using chemicals and other devices to 
make the product unmerchantable.^^ The recent Massa- 
chusetts anti-anarchy act of 1919 is very similar; it specifi- 
cally penalizes the advocacy of killing, destruction of prop- 
erty, or violent revolution.^* This Massachusetts act was 
reduced to its present form by repeated protests from lib- 
erals. Instead of legislating against anarchy and other 
radical doctrines as opinions, the Massachusetts and New 
Jersey statutes prohibit incitement to definite serious crim- 
inal acts. Such codifications of the common law serve the 
desirable purpose of letting speakers and writers know what 
they must not do. If these statutes are construed strictly 
like other penal statutes and applied with common sense 
and a realization, as Justice Hughes puts it, that " Hyde 
Park meetings and soap-box oratory constitute the most 
efficient safety-valve against resort by the discontented to 
physical force," ^^ then they will enable New Jersey and 
Massachusetts to deal vigorously with any real danger of 
lawlessness without at the same time turning revolutionary 
opinions into crimes. Any state which considers legislation 

37 N. J. Laws, 1908, c. 278; the cases construing it are given in 
Appendix V. The possibilities of the misapplication of even such a 
narrow statute are shown by State v. Scott, reversing a conviction for 
an intemperate newspaper attack on the brutality of the Paterson 
police; and by the dissenting opinion in State v. Quinlan because the 
defendant -was prejudiced by the elaborate inquiry at the trial into the 
doctrines of the I.W.W. For the comment of an I.W.W. on these 
cases, see the quotation from E. G. Flynn in Herbert E. Cory's The 
Intellectuals and the Wage Workers, N. Y., 1919, p. 208. 

38 Mass. Laws, 1919, c. 191. 

39 Brief for N. Y. Socialist Assemblymen, p. 41 (see Chapter VI). 



190 FREEDOM OF SPEECH 

of this type necessary ought to turn to these two statutes as 
model anti-anarchy acts. 

Most of the legislation since 1917 has, however, been far 
more extensive. About one-third of the states have applied 
the New York statutory scheme to the new crime of criminal 
syndicalism, " the doctrine which advocates crime, physical 
violence, arson, destruction of property, sabotage, or other 
unlawful acts or methods as a means of accomplishing or 
effecting industrial or political ends, or . . . industrial 
or political revolution, or for profit." The advocacy of 
any unlawful act for such ends and the circulation of any 
book affirmatively suggesting criminal syndicalism or any 
unlawful act for such ends are among the offenses punish- 
able by imprisonment from one to ten years. These acts 
are almost uniform in phraseology, Idaho having apparently 
supplied the original model. Some states depart from type 
into much vaguer phraseology. Thus, Arizona in an act 
which Governor Hunt allowed to become law without being 
willing to put his name to it makes it criminal to advocate 
the violation of " the constitutional or statutory rights of 
another as a means of accomplishing industrial or political 
ends." ^° Montana punishes in peace all the non-military 
crimes mentioned in the federal Espionage Act of 1918 as 
well as " any language calculated to incite or inflame resist- 
ance to any duly constituted state authority." *^ West Vir- 
ginia makes criminal any teachings in sympathy with or 
favor of " ideals hostile to those now or henceforth existing 
under the constitution and laws of this state." *^ 

These are but brief extracts from the legislation which 
has been enacted or invoked in almost every state during the 
last few years.*^ In addition. Mayor Hylan of New York 
wanted an ordinance to punish owners of buildings permitting 
an assemblage advocating " policies tending to incite the 

40 Ariz. Laws, 1918, sp., c. 13. 

41 Mont. Laws, 1919, c. 77. 42 See note 26. 

43 For harsh applications of these statutes, see Clare Shipman, " The 
Conviction of Anita Whitney," 110 Nation 365 (March 20, 1920), Cali- 
fornia; "The Most Brainiest Man," ibid. 510 (April 17), Connecticut. 



LEGISLATION AGAINST SEDITION 191 

minds of people to a proposition likely to breed a disregard 
for law," and a Boston ordinance to forbid the display of 
anything that was sacrilegious or tended to promote im- 
morality was also unsuccessful, but the Mayor of Toledo 
is said to have prohibited any meeting anywhere in the city 
" where it is suspected a man of radical tendencies will 
speak." 

These statutes and regulations are, for the most part, 
different from the normal criminal law in three ways: (1) 
they label opinions as objectionable and punish them for 
their own sake because of supposedly bad tendencies with- 
out any consideration of the probability of criminal acts; 
(2) they impose severe penalties for the advocacy of small 
offenses as much as for serious crimes; (3) they establish 
a practical censorship of the press ex post facto. These 
statutes are no dead-letter. In particular, the Illinois law 
has been enforced by wholesale arrests in Chicago. Fur- 
thermore, the governors of other states are already granting 
the extradition of accused persons to Illinois. Under this 
policy, a state with a drastic sedition law like Montana will 
be able to hunt a man down in the most liberal part of the 
nation, and there will be practically no chance for a review 
by the United States Supreme Court. The United States 
has always refused to allow the extradition of persons 
charged by other countries with political crimes, even if the 
charge (as often happened with Russians) involved the 
advocacy of violence and revolution.^* Since state governors 
under the Constitution cannot be compelled to permit ex- 
tradition,*^ it is to be hoped that in future they will follow 
the wise policy of the national government. 

The state anarchy acts are constitutional under the test 
laid down by the United States Supreme Court in the 

44 See the state papers in 4 Moore's Digest of International Law 
332 ff. The possible exception of anarchists who actually cause explo- 
sions (ibid. 354) may be disregarded, since we are dealing at most with 
unsuccessful incitement to anarchy, and in general with the expression 
of revolutionary views and membership in revolutionary organizations, 
which would clearly be political crimes and unextraditable. 

45 Kentucky v. Dennison, 24 How. (U. S.) 66 (I860), 



192 FREEDOM OF SPEECH 

Schenck case, insofar as they are employed to meet a " clear 
and present danger " of unlawful conduct. It is probable 
that the open advocacy of sabotage and the doctrines of 
revolutionary syndicalism, against which most of these 
statutes are directed, does present a sufficient danger to 
bring such speech within the range of legislative discretion, 
and a few decisions have already so held.^® On the other 
hand, the clauses of these statutes which make it criminal 
ipso facto to belong to organizations like the Industrial 
Workers of the World, although the accused has never 
expressed any agreement with the violent portions of its 
economic theory, raise serious difficulties. This is not 
punishing a man for what he does, or even for what he says, 
but for what some one else says, which he may possibly 
not approve. There are so many reasons why a workman 
is led to join the labor union to which his fellows belong, 
that the law should hesitate to attribute to him an active 
support of every plank in its platform. Apart from ques- 
tions of constitutionality, it is dubious policy to make mem- 
bership in a labor union a crime no matter how much we 
may disagree as I do with its aims and methods. That was 
the policy of the English Combination Acts of the early 
nineteenth century. The attempt to break up trade unions 
by imprisonment was defended because of the violence which 
had accompanied some of their activities, but the imposition 
of severe penalties on men who had taken no part in that 
violence simply strengthened the unions and increased their 
bitterness. My own hope is that eventually the state may 
provide an impartial tribunal for the settlement of indus- 
trial disputes,^^ just as it formerly brought blood-feuds and 
quarrels over boundaries into the King's courts. Until that 
time comes, although my own sympathies and direct inter- 

46 state V. Boyd, 86 N, J. L. 75; State v. Moilen, 140 Minn. 112. But 
see 20 Colum. L. Rev. 232 (February, 1920); Ex parte Meckel, 220 
S. W, 81 (Tex. 1920); dissent in State v. Tachin, 108 Atl. 318 (N. J. 
1919). 

47 Henry B, Higgins, " A New Province for Law and Order," 29 
Harv. L. Rev. 13, 32, ibid. 189, summarizes the Australian experience. 



LEGISLATION AGAINST SEDITION 193 

ests are on the side of the employers, I beheve it to be a 
grave error for the state to intervene against the work- 
ingmen until immediate violence is threatened. The parties 
should be left to contend by economic methods. I know 
that many who would believe in such a policy as regards the 
American Federation of Labor will not approve its extension 
to the revolutionary unions. Nevertheless, those who inves- 
tigated the I.W.W. on behalf of the government during 
the war found that the causes for its existence were deep- 
rooted economic factors,*^ and not any wide-spread desire 
for political changes or violence for its own sake. Until 
those factors are dealt with directly, the use of the tremen- 
dous power of the state on behalf of the employers and the 
conservative unions, while it may produce a superficial 
weakening of revolutionary unionism, is sure to intensify 
its hostility to the state and the belief that government is 
only the organ of capital. For instance, the men who have 
been enjoined by a judge at Spokane " from continuing as 
members of the I.W.W." ^^ will not thereby be turned into 
enthusiastic supporters of the country's laws or alter their 
economic views. Indeed, careful observers already report a 
rapid shift of members of the I.W.W. into the A. F. of L., 
where they are safe from prosecution, and can do infinitely 
more damage than when they were in the open,^° 

When the anarchy acts go still farther and punish dis- 
cussions of the general strike, or condemn words and sym- 
bols, which are inoffensive in themselves, for their bad social, 
economic, or political tendencies, they clearly infringe the 
danger-test and ought to be declared void. But I do not 
think we ought to let the discussion of the state and federal 
sedition laws turn on the controversy whether they are un- 
constitutional. The free speech clauses, as I said at the 
outset of this book, are a declaration of American policy 

48 The Bibliography lists material on the I.W.W. 

49 109 Nation 843 (January 3, 1920). 

50 John Graham Brooks, Labor's Challenge to the Social Order, c. XX; 
Roger Baldwin, conversations; from a different angle, Ole Hanson, 
Americanism versus Bolshevisim, c. XII. 



194 FREEDOM OF SPEECH 

as well as an extreme limit upon legislative power. The 
most difficult questions are raised by the application of 
the anarchy acts to the advocacy of " force and violence," 
when no immediate violence is liable to take place. Although 
I do not feel sure that such speech can constitutionally be 
punished when there is no danger of immediate violence, still 
both Justice Holmes and Judge Learned Hand would agree 
that the nature of the words used is an essential factor, 
apart from the surrounding circumstances, in deciding 
whether the danger does exist, and the common law cases 
on solicitation support this view. But even if the statute 
is constitutional, the most important questions still remain, 
whether it is expedient and in accord with American tradi- 
tions, and how it shall be construed. On these points what 
I have already said of the syndicalism statutes has bearing, 
but it is upon this ground of sound policy that every 
thoughtful American ought to consider the proposed federal 
Sedition Law. 

VI. The Federal Sedition Bills 

Nothing less than a very great national danger should 
lead us to abandon the American policy of courage and 
tolerance and re-enact the first Sedition Act in time of peace 
since the disaster of 1798. The burden of proof rests fairly 
on those who advocate such a doubtful step. It has already 
been shown that it is not called for by any immediate danger 
of revolution, since the Criminal Code will deal with that, 
and indeed what has been said of the enormously exaggerated 
accounts of pro-German plots during the war ought to show 
that " the Red menace " is probably a similar panic.^^ It 
is of course impossible for a private citizen to assert that 
no danger exists to justify the officials in their statement 
that this legislation is necessary, but he may properly as- 
sume that the documents in which they set forth that state- 
si See page 70, supra, and the speech of George W. Anderson at 
the Harvard Liberal Club, reported in " The Red Hysteria," 21 New 
Bepublic 250 (January 28, 1920) ; and Boston Herald, January 13, 1920. 



LEGISLATION AGAJNST SEDITION 195 

mcnt embody the principal facts on which it is based. If 
they have not yet supplied the vital facts, they ought to do 
so, and not ask this country to reverse its policy of six- 
score years at a mere trumpet-blast of danger. 

The main documents in the case are furnished by the most 
distinguished supporter of sediti6n legislation, Mr. A. 
Mitchell Palmer. In an official Report,^^ he has asked Con- 
gress not only to enact an unprecedented statute, but for 
fear this may not be enough he has also suggested that 
Congress recommend the passage of similar legislation by 
all the states. The seditious writer will then be run to earth 
by the five hundred agents of the Department of Justice, 
with the aid of twelve thousand policemen and fifty prosecut- 
ing attorneys in New York City, and a multitude of others 
throughout the land. Thus, we can meet " the present in- 
tolerable situation." Why is it intolerable? The Attorney 
General says that he needs the legislation because of four 
facts : ( 1 ) the presence of " 60,000 radically inclined indi- 
viduals " whose histories have been compiled by his agents ; 
(2) the circulation of 471 " radical newspapers " besides 
other publications, all of which are " one of the most potent 
and far-reaching influences in stirring up discontent, race 
prejudice, and class hatred in this country " and " more than 
any other one thing, perhaps, are responsible for the spread 
of the Bolshevik, revolutionary, and extreme radical doc- 
trines "; (3) the fact that the Trading with the Enemy Act, 
which requires that the local postmaster shall receive a 
translation of every publication in a foreign language criti- 
cising the policies of any government before distribution of 
any sort expires with the war, and the lapse of this censor- 
ship will create a difficult problem in dealing with " radical 
propaganda of a more violent character"; (4) "practically 
all of the radical organizations have endeavored to enlist 
negroes, on their side." 

52 Investigation Activities of the Dept. of Justice, Sen. Doc. No. 
53 (66th Cong., 1st Sess.), Wash., 1919. See also his evidence in House 
Judiciary Hearings and Palmer Deportations Testimony. 



196 FREEDOM OF SPEECH 

If the Attorney General had limited himself to a statute 
punishing successful and unsuccessful attacks upon federal 
officials and property, he would have performed a real service 
in filling gaps in the federal law against violence. Legisla- 
tion against his hypothetical man who approaches the Chief 
Justice with a bomb in his hand would not affect freedom of 
speech. But it should be clearly understood that Mr. Palmer 
asked much more than this when he sought to legislate out of 
existence the four kinds of propaganda just mentioned on 
the ground that these theories and doctrines might con- 
ceivably lead to future assaults and revolutions. 

In a circular letter sent to the editors of leading maga- 
zines,^^ Mr. Palmer shows even more plainly that he is seek- 
ing to use the power of the government, not against actual or 
threatened violence, but against bad ideas. After submitting 
copies of various publications of the Soviet Government, he 
states that these documents alone demonstrate: (1) " that the 
present aim of the Russian Government and its officers is to 
foment and incite discontent, aiming towards a revolution 
in this country; (2) that the entire movement is a dishonest 
and criminal one, in other words, an organized campaign to 
acquire the wealth and power of all countries for the few 
agitators and their criminal associates." Among other 
qualities of Bolshevism : " It advocates the destruction of 
all ownership in property, the destruction of all religion and 
belief in God. . . . The sabotizing of public thought is 
an essential of this movement." 

The Department, as far as existing laws allow, intends to 
keep up an unflinching war against this movement no matter 
how cloaked or dissembled. We are determined that this move- 
ment will not be permitted to go far enough in this country 
to disturb our peace or create any widespread distrust of the 
people's governxnent. 

There is a menace in this country. It may not be the menace 
of revolution. . . . My one desire is to acquaint people like you 

53 Reprinted in 110 Nation 190 (February 14, 1920). See also Palmer 
Deportations Testimony, for emphasis on the atheism of prominent radi- 
cals as an argument for their deportation. 



LEGISLATION AGAINST SEDITION 197 

with the real menace of evil-thinking which is the foundation 
of the Red movement. 

That a Quaker should employ prison and exile to counter- 
act evil-thinking is one of the saddest ironies of our time, 
and particularly that he should justify this by the religious 
heresy of his opponents. After all that Milton and Bagehot 
and Mill have said of the unwisdom of influencing the mind 
by temporal punishments and burdens, after Justice Holmes's 
warning against attempts to check by force " the expression 
of opinions that we loathe and believe to be fraught with 
death," even those who disagree with Bolshevism, anarchism^ 
and revolutionary syndicalism as strongly as I do myself 
will need no further argument to realize that as theories 
they must be defeated in some other way. To conduct argu^ 
ments by violence, even if that violence is employed by gov- 
ernment officials under the guise of law, is contrary to sound 
political policy and to the constitutional guaranties of free-' 
dom of speech. 

Besides the draft Sedition Act recommended by the At- 
torney General, which goes so far as to punish writings 
which " tend to indicate sedition," Congress has under con- 
sideration about seventy similar bills, of which three have 
attracted public notice.^* These are the Overman Bill, a 
peace-time replica of the sedition section of the Espionage 
Act of 1918, reported in 1919 by the Senate sub-commit- 
tee to investigate Bolshevism, as the fruit of its labors; 
the Sterling Bill, the best drawn of the four, passed by the 
Senate in January, 1920 ; and the Graham Bill, a very drastic 
measure with a death penalty and a sweeping postal censor- 
ship, which the House Judiciary Committee substituted for 
the Sterling Bill and recommended for immediate enactment. 
Its reasons were the attack on Mr. Palmer's house, the shoot- 
ing of soldiers at Centralia, " numerous other instances of 
outrage aimed at the existence of our institutions," and the 

54 S. 1686; S. 3317; H. R. 11430; Investigation Activities of the Dept. 
of Justice, 14; see also Report No. 542, H. R. (66th Cong., 2d Sess.). 
Congress adjourned, June, 1920, without any enactment. 



198 FREEDOM OF SPEECH 

vigor and extent of anarchistic teachings as revealed by 
recent investigations. The Committee does not show why 
the existing law is not adequate to deal with all these facts 
except the presence of pernicious and dangerous ideas. 
Attorney General Palmer refused to support the Graham 
Bill, and the House Rules Committee decided after several 
hearings that it was too unsatisfactory to be given any 
priority in the order of business. Some of these bills impose 
a maximum sentence of twenty years for unlawful discussion, 
and in addition aliens are to be deported and naturalized 
citizens are to be denaturalized and turned loose on the 
world as men without a country. Indeed, Senator McKellar 
of Tennessee wanted to go one step farther and deport 
native-born Americans to a penal colony in Guam, so that 
we also might have our Devil's Island or Siberia.^^ 

Energetic opposition to all four bills by the American 
Federation of Labor and many kinds of other organizations 
and by the most conservative newspapers and periodicals, 
makes it improbable that any of them will become law. At 
all events the kaleidoscopic state of sedition legislation in 
Congress induces me to avoid going into the details of any 
pending bill. Instead, I am going to assume for purposes 
of discussion that Congress may eventually have before it a 
very simple measure, from which all the obviously objec- 
tionable features of the four bills mentioned will be elimi- 
nated. This hypothetical bill is limited by its terms to the 
advocacy of assassination of federal officials, and the use of 
" force or violence " for the overthrow of our government 
or all governments, or the attainment of changes in our 
Constitution and laws. It punishes the individual who urges 
such "force or. violence" orally or in writing, and also 
any one who imports from abroad or transports from state 
to state any book or other printed matter which advocates 
such " force or violence." 

It is improbable that power will be given to the Post- 
master General to exclude such material from the mails, for 

55 Amendment offered to S. 3317, December 4, 1919. 



LEGISLATION AGAINST SEDITION 199 

the strongest hostility to the pending bills was directed to 
such a power. Even if it be said that the Blackstonian 
test does not forbid the government to control the use of 
its own machinery, the post-office, it is clear to every news- 
paper that its exclusion from the mails is equivalent to an 
absolute censorship. If Mr. Burleson or his successor can 
exercise the same power in peace that he had during the 
war to suppress political discussion which he deems objec- 
tionable, he has at hand a much more powerful weapon than 
the Sedition Act of 1798. A newspaper editor fears being 
put out of business by the administrative denial of the second- 
class mailing privilege much more than the prospect of prison 
subject to a jury trial. Even if the periodical is given 
the right of judicial review, this is of little practical value 
because of the ruin of circulation during the delay before a 
court hearing. The same considerations apply to a censor- 
ship of the foreign-language press, although this presents 
special problems and dangers. Consequently, the bill before 
us for discussion imposes no previous restraint, but makes 
the advocacy of " force or violence " a crime, punishable by 
a long term in prison and a heavy fine. 

Two questions are raised. (A) How far is such a measure 
constitutional? (B) How far is it wise and expedient.? 

VII. The Constitutionality of a Federal Sedition Law 

The constitutional problem involves three points, affirma- 
tive power to punish, the treason clause, and the free speech 
clause.^*^ 

1. What clause in the Constitution gives the United 
States power to punish seditious utterances.'' The states 
face no such difficulty, for they possess all power that is 
not expressly denied to them by their constitutions, and can 
reach objectionable writings under their general police 

56 For a full discussion with citation of cases, see H. W. Bikle, " The 
Jurisdiction of the United States over Seditious Libel," 41 Am. L. Reg. 
(N. S.) 1 (1902). His conclusions as to the First Amendment differ 
very much from mine. 



200 .FREEDOM OF SPEECH 

power and criminal jurisdiction. The United States Govern- 
ment, on the other hand, has only the powers which are 
expressly granted to it by its organic document. Most of 
the discussion in 1787-88 over the need of a free speech 
clause in the federal Constitution and most of the contro- 
versy over the constitutionality of the Sedition Act of 1798 
turned on this point. Much has happened since, however, 
to indicate that the United States has this power to punish 
verbal opposition unless prohibited by some negative clause 
in the Constitution. The epoch-making decisions of 
Marshall show that the government does not have to rely 
on any one specific grant of power. The Constitution as 
a whole creates a nation with officers and functions and in 
Article I, Section 8, gives to Congress the right " to make 
all laws which shall be necessary and proper for carrying 
into execution the foregoing powers, and all other powers 
vested by this Constitution in the government of the United 
States, or in any department or officer thereof." Conse- 
quently, no express provision is required to enable the gov- 
ernment to operate one or more national banks, or exclude 
aliens from its shores. Its courts can punish contempts 
committed against them. The United States Supreme Court 
has already decided in the Neagle case that the Federal 
Government has power to protect the lives of its judges 
engaged in the discharge of judicial duties and in other deci- 
sions that it can safeguard even prisoners in its custody. 
The same principle applies to the President or any other 
official and it seems immaterial whether they are at the 
moment occupied with business. Their work may be hin- 
dered by threats and other utterances as well as by acts. 
Similarly words which interfere with express functions of 
the government like the war power fall within its criminal 
jurisdiction. The conviction of Emma Goldman for issuing 
pamphlets urging disobedience to the draft, and all the Es- 
pionage Act cases prove this beyond question. It is of 
course true that revolutionary speeches do not affect any 
specific function of the government, but they do affect its 



LEGISLATION AGAINST SEDITION 201 

existence, the most important result of the Constitution. 
Therefore, on this point I conclude that the United States 
has affirmative power to protect its own life and the lives of its 
officers, not only from revolution and assassination, but also 
from attempts and solicitation directed toward these ends, 
and even from discussion which might have a remote tend- 
ency to produce such evils, unless that power is restricted 
by either the treason clause or the First Amendment. 

2. Section 3 of Article III, which relates to the judicial 
power of the United States, provides : " Treason against the 
United States shall consist only in levying war against them, 
or in adhering to their enemies, giving them aid and com- 
fort. No person shall be convicted of treason unless on the 
testimony of two witnesses to the same overt act, or on con- 
fession in open court. The Congress shall have power to 
declare the punishment of treason, but no attainder of 
treason shall work corruption of blood, or forfeiture except 
during the life of the person attainted." 

We shall in discussing the Berger case return to the ques- 
tion of what is treason in war when there are " enemies," 
but in peace, treason is narrowly limited in this country to 
" levying war," and Chief Justice Marshall decided in the 
case of Aaron Burr that that crime requires an actual assem- 
blage of forces. Consequently, the conduct we have in mind 
is not punishable as treason under our Constitution. Does 
this prevent it from being punishable otherwise? Under the 
English treason statute of 25 Edw. Ill, c. 2, very many 
kinds of action which interfered with the state were defined 
as treason. The courts construed these clauses very widely*" 
to reach as " constructive treasons," conduct very remote 
from the defined crimes. ^^ This practice became so noto- 
rious that the framers of the Constitution wisely prevented 
it by rejecting most of the English categories and narrowly 
restricting the evidence on which conviction can be secured. 
Can Congress accomplish these undesired results by calling 
the same conduct, not treason but sedition or something else? 

6T 2 Stephen, History of the Criminal Law, c, 23 on High Treason. " 



y 



/ 



202 FREEDOM OF SPEECH 

For example, under the English statute it was treason 
to " compass or imagine the death of our lord the king." 
This was interpreted to include threats against him. By 
analogy, it would be treason to threaten the life of the 
President, if our Constitution had not definitely provided 
otherwise. Congress in 1917 created the crime of threats 
against the President.''® Is such a statute an unconstitu- 
tional evasion of the treason clause .f* 

Again, if the Biglow Papers were not " aid and com- 
fort to the enemy " — a problem to which I shall return in 
the sixth chapter — could Congress treat them as severely as 
if they were treasonable by creating the crime of seditious 
libel with a punishment of death? A similar question was 
put to the counsel for the United States in the Abrams case 
by Justice Brandeis, who got the reply, " Of course, we 
wouldn't go that far." But if Congress and the Department 
of Justice have power to go that far, the value of the treason 
clause is considerably weakened. All the acts which were con- 
structive treasons under the English law could be made crimi- 
nal without even the security of two witnesses or the pro- 
visions against corruption of the blood and forfeiture. 

On the other hand, it is argued that the treason clause 
is not placed among the restrictions on Congress. It simply 
prevents the courts from construing the word " treason " in 
a statute to extend beyond the constitutional definition, even 
if the statute gives it a wider definition. Congress is not 
prohibited from punishing on other grounds and under other 
names crimes which were treason in England, if these are 
within the federal criminal jurisdiction. The same act 
might be both treason and something else. Thus killing the 
king was treason and murder. Congress can punish the 
murder of the President but not the treason. Or rather, 
it can punish it not as murder, but as an interference with 
an express function of the government. It is settled that 
the United States can prevent assaults on federal judges 

58 U. S. Comp. Stat., § 10200 a. Act of February 14, 1917, c. 64. See 
32 Harv. L. Rev. 724. 



LEGISLATION AGAINST SEDITION 203 

though that is analogous to treason in England, ' Counter- 
feiting money was treason there and is expressly punishable 
under the Constitution. 

This argument seems to me more satisfactory when ap- 
plied to active interferences with specific functions of the 
government, than when extended to utterances which have a 
tendency to weaken the sovereignty of the state as a whole. 
Are they treason in England plus something else? Was it 
not this tendency to weaken which made them constructive 
treason, and when they cannot be criminal on that account, 
does not all ground of jurisdiction fail? 

This is a problem somewhat foreign to my province, so 
that I prefer not to state a definite conclusion, which can 
only be reached after more judicial interpretation of the 
treason clause. 

3. The First Amendment seems clearly to be violated by 
many clauses in pending federal sedition bills, which punish 
words merely for their assumed tendency to produce bad 
consequences in the remote future, for instance, that section 
of the Graham Bill which excludes from the mails under 
heavy penalty " printed matter . . . whereby the use of 
force . . . is . . . defended . , . as a means towards 
the accomplishment of industrial, economic, social, or po- 
litical change, or whereby an appeal is made to racial preju- 
dice the intended or probable result of which appeal is to 
cause rioting or the resort to force and violence within the 
United States ..." The first clause would aifect every 
history of the American Revolution, Macaulay's History of 
England, and W. R. Thayer's Life of Cavour. The second 
would suppress all but the most carefully guarded presenta- 
tions of the wrongs of the negro.^® This attempt to enlist 
popular support for attacks on radicalism by uniting fear 
of the blacks to fear of the reds has become a favorite device 
of late. Attorney General Palmer hints that negroes must 
not be allowed to join radical organizations. The Lusk 

59 Ho. Cal. No. 129, § 6. For restrictions of race-irritation in moving- 
picture films, see W. Va. Laws, 1919, c. 117. 



204 FREEDOM OF SPEECH 

Committer seizes an unanswered letter to the Rand School 
suggesting the spread of socialism among the negroes (with- 
out a word about violence) and presents it as a menacing 
scheme adopted bz/ the School " for the spreading of Bol- 
shevist propaganda among negroes in the South," so that 
the New York Times runs front-page head-lines : " Moves 
to Close the Rand School — District Attorney Takes Steps 
Toward Revoking Radical Institution's Charter — Planned 
Negro Uprising." ^'^ 

The Sedition Act of 1798 was also a violation of the First 
Amendment, especially as it included criticism of the Presi- 
dent and Congress, which was very remotely injurious to the 
United States.'' 

If, however, we consider a federal bill such as I have 
suggested, which, like the Massachusetts and New Jersey 
Anti-Anarchy Acts, eliminates all clauses obviously punish- 
ing bad tendency and penalizes only the advocacy of force 
and violence, much more difficult questions of constitution- 
ality arise. It may be helpful to examine various kinds of 
utterances successively. If one directly incites another to 
murder an official and the murder takes place, the speaker 
is, of course, punishable. The same holds good, even if 
the incitement proves unsuccessful. If the speaker does not 
solicit any particular person, but eloquently appeals to a 
large audience for some new Charlotte Corday, or if naming 
no specific victim he urges the assassination of an indefinite 
number of men from some hated group, the case is not 
altered. Even if he alleges the loftiest motives, the social 
interest in truth and progress is far outweighed by the 
interest in order, and there is a direct interference with the 
safety of life. When he does not ask for any future killing, 
but merely glorifies such an event in the past, the danger 
lessens and the power to punish becomes more uncertain.®^ 

6o;Yew York Times, June 28, 1919; see also July 9. 

61 See page 29, supra. Bikle admits it was probably invalid for the 
reason stated above. 

62 For opposing views on the question whether praise of a criminal 



LEGISLATION AGAINST SEDITION 205 

The time elapsed is perhaps an element. A distinction might 
be drawn between praise of the assassin of McKinley, and 
" Cffisar had his Brutus, Charles I. his Cromwell." Yet even 
Patrick Henry's speech might be held advocacy of force 
and within the hypothetical Sedition Law. A further step 
is the discussion of tyrannicide as an abstract proposition 
of morality. Mill was willing to allow the fullest liberty 
even for this,®^ but it is probable that assassination is so 
easily carried out that there is always a sufficiently clear and 
present danger of its occurrence to bring such discussions 
within the range of legislative discretion. 

Advocacy of revolution is much less dangerous except 
in extraordinary times of great tension. The chances of 
success are so infinitesimal that the probability of any 
serious attempt following the utterances seems too slight to 
make them punishable by the Federal Government. This is 
especially true if the speaker urges revolution at some 
future day, so that no immediate check is required to save 
the country. Even if several men talk like this with very 
bad intentions, they should not be held guilty of conspiracy 
under section 6 of the United States Criminal Code unless 
the danger-test is satisfied. There is no " clear and present 
danger " in a revolution announced for 1948. 

The Federal Government has nothing to do with the ques- 
tion whether such discussion is a public nuisance or a breach 
of the peace under state law. Johann Most was convicted 
on both sides of the Atlantic for advocacy of assassina- 
tion,^* but those decisions are based on present injury to 
the peace and not on danger to the rulers. \\Tien, however, 
the audience joins in the speaker's inflammatory utterances 
the assembly becomes unlawful, and may possibly constitute 
a conspiracy under the federal Criminal Code. Thus, Most 
at a New York meeting on the morrow of tlie Spies execu- 

can be considered incitement to crime, see Masses Pub. Co. v. Patten, 244 
Fed. 535; 245 Fed. 102. 

«3 Mill, Liberty, note at opening of c. II. 

64 Reg. V. Most, 7 Q. B. D. 244 (1881); P. v. Most, 171 N. Y. 423 
(1902). 



206 FREEDOM OF SPEECH 

tions doomed to an early death the prosecuting attorney; 
the trial judge; the Supreme Court of Illinois; "the 
highest murderers in the land, the Supreme Court of the 
United States " ; and the Governor of Illinois. His hearers 
exhibited warm approval, and when he said, " The day of 
revolution is not far distant," one of the audience rose and 
said excitedly : " Why not to-night, for we are ready and 
prepared? " The address by itself appears to have been 
deemed insufficient to support a criminal prosecution, but he 
was convicted of participating in an unlawful assembly."^ 
Possibly there was also a conspiracy within the United 
States Criminal Code, but the absence of any real danger 
to the Federal Government makes this improbable. 

This case shows how much the danger of utterances is 
affected by surrounding circumstances as well as by the 
words used. A soap-box orator on a street-corner shouting 
to casual passers-by is far less perilous than if he delivers 
the same address in a hall overcrowded with sympathetic 
listeners. A pamphlet is less dangerous than any speech, 
a book than a pamphlet. A threat of revolution over the 
family tea-table is innocuous. Every one will admit that 
these considerations affect the wise drafting and enforce- 
ment of sedition legislation, and some at least hold that they 
may decrease the danger from objectionable utterances 
until they sink below the minimum limit of Congressional 
power. Thus, Freund says : ^^ 

The doctrine that crime may under given conditions become 
justifiable or that it may have a tendency to arouse the public 
conscience should not in itself be held to constitute a crime. It 
is clear that an exposition of social wrong or injustice must be 
allowed, nor can the necessary liberty of agitation be said to be 
overstepped by appeals to sentiment rather than to reason; and 
if it is said that appeal to sentiment is appeal to passion and 
must lead to disorder and violence, it must be answered that 
this was always the plea upon which political agitation was 

65 P. V. Most, 128 N. Y. 108 (1891) ; see Freund on the Police Power, 
§477. 

e«Op. cit., §§4.76, 478. 



LEGISLATION AGAINST SEDITION 207 

formerly suppressed. Not even the fact that an adherent of the 
doctrine commits a crime is conclusive that the teaching of the 
doctrine amounts to incitement; for the crime may as well have 
been induced by a morbid brooding over conditions which are 
the cause of social discontent. . . . The constitutional guaranty of 
freedom of speech and press and assembly demands the right to 
oppose all government and to argue that the overthrow of govern- 
ment cannot be accomplished otherwise than by force. ... It 
is probably true to say . . . that it is impossible to strike at 
anarchism as a doctrine without jeopardizing valuable constitu- 
tional rights. 

Nevertheless, the Abrams and Schaefer decisions in the 
Supreme Court should deter any one from predicting uncon- 
stitutionality under the First Amendment for the Threats 
against the President Act, or the Sterling Bill, or the hypo- 
thetical statute I have been considering, which is carefully 
limited to " force and violence." The " nature of the words 
used " may be held to create sufficient danger to support 
the restriction on freedom of speech. Moreover, the real 
issues of constitutional law, as in Masses v. Patten and the 
Abrams trial, are likely to arise from a loose construction of 
the statute, even if its wording is valid. Therefore, I con- 
sider it a much more fertile subject of discussion to turn 
to the wisdom and policy of a federal sedition law against 
the advocacy of " force and violence." 



VIII. The Wisdom and Expediency of a Federal 
Sedition Law 

No one knows what blasphemy is or what sedition is, but all 
know that they are vague words which can be fitted to any mean- 
ing that shall please the ruling powers. — Walter Bagehot. 

" No man," says Attorney General Palmer, " can go fur- 
ther than I will go in his earnestness to protect the people 
in the guaranty of free speech." Nevertheless, he insists 
that there must be a dead-line, and this he finds it easy to 
draw at the place where there is a threat or promise or neces- 



208 FREEDOM OF SPEECH 

sary implication of the use of physical force or violence.*^ 
So long as Congress does no more than punish this sort of 
language, how can any one reasonably object? The public 
seems at first sight to get no benefit from such talk, and 
clearly the speaker has no claim to encouragement. Men 
may well inquire how the interest of society in the attain- 
ment of truth and progress is served by threats to kill offi- 
cials, blow up buildings, and bring in the dictatorship of 
the proletariat with a holocaust of vengeance. Consequently, 
the question whether a law against the advocacy of force 
and violence is wise may be thought to admit only of an 
affirmative answer. 

I believe, however, that the problem is far less simple than 
it seems. Although the opponent of the proposed legislation 
apparently occupies a very bad position, that of standing up 
for force and violence, yet it may be possible to show that 
such legislation is dangerous, far more dangerous than the 
i agitation it expects to suppress. If a federal law against 
violent talk and writings which create no immediate danger 
of injurious action is not only constitutional but highly de- 
sirable and necessary, why is it that we have had only one 
such law in the past, and that one a stupendous failure? 
Even the state laws against inflammatory utterances as 
breaches of the peace have been used very sparingly against 
soap-box orators and revolutionary literature. We have 
refused to make arrests unless there was a real danger that 
the lawlessness which was advocated would immediately take 
place. Surely, there is nothing to be ashamed of in urging 
a continuance of this traditional American policy. 

Most of us believe that our Constitution makes it possible 
to change all bad Ir.ws through political action. We ought 
to disagree vehemently with those who urge violent methods, 
and whenever necessary take energetic steps to prevent them 
from putting such methods into execution. This is a very 
different matter from holding that all discussion of the de- 

67 Testimony before House Judiciary Committee, New York Timet, 
February 5, 1920. House Judiciary Hearings, 21. 



LEGISLATION AGAINST SEDITION 209 

sirability of resorting to violence for political purposes 
should be ruthlessly stamped out. There is not one among 
us who would not join a revolution if the reason for it be 
made strong enough. Californians would take up arms 
against an amendment passed by Congress and the other 
state legislatures for the cession of California to an Ori- 
ental power. And talk about violence is far more com- 
mon. Tobacco will not follow alcohol into oblivion with- 
out some murmurs of a fight from the most peaceable 
citizens. 

The United States is the last place on earth where mere 
talk about resistance and revolution ought to be treated as 
inherently vicious and intolerable. The founders of the 
colonies broke the religious laws of England before they 
came here and some of them engaged in a large-sized rebel- 
lion. The founders of the United States urged the destruc- 
tion of property by the destruction of tea and the burning 
of stamped paper. They went further. They advocated 
the overthrow of this or any other government by force and 
violence when they adopted a well-known document which 
reads, " That whenever any form of government becomes 
destructive of these ends, it is the right of the people to 
alter and abolish it." 

If a federal statute against the advocacy of force and 
violence had been enacted in the Abolition period, several 
distinguished citizens of Massachusetts would have been 
criminals. Wendell Phillips advocated opposition to the 
Fugitive Slave Law, and his statue is in the Public Gardens 
of Boston. William Lloyd Garrison did so, and his statue 
is on Commonwealth Avenue. The Overseers of Harvard 
College dismissed a law teacher, Edward G. Loring, because 
he carried out his oath of office as United States Commis- 
sioner by enforcing that law, and for the same reason both 
houses of the Massachusetts legislature requested the Gov- 
ernor to remove him from a probate judgeship, and he was 
removed. Theodore Parker, George L. Stearns, Thomas 
Wentworth Higginson, and Frank B. Sanborn contributed 



210 FREEDOM OF SPEECH 

funds to send John Brown to Harper's Ferry to use force 
and violence. 

These men believed that some bad laws are so powerfully 
supported that the only way to obtain their repeal is to 
violate them. They believed that no decent man could sit 
silent and inactive while the Fugitive Slave Law was en- 
forced. Perhaps they were all of them wrong. Some of 
them were clearly liable as accessories to criminal acts. I 
insist that such acts must be punished, however noble the 
motive. But we cannot honor and praise these men for their 
courageous onslaughts on established evils, and at the same 
time pronounce it a heinous crime for any one to-day to 
urge the removal of wrongs by force. Above all, we cannot 
draw a distinction between those days and ours on the 
ground that the government was bad then and is now good. 
I believe that to be true, but time alone will prove which 
is right, the left-wing Socialist or I. We must not forget 
how Braxfield justified his ferocious sentences by saying that 
the British Constitution of 1794 was the best in the world. 
The law and order men of 1774 and 1854 did not consider 
their governments and laws bad. They would have been 
glad to incarcerate Otis and Adams, Garrison and Sumner, 
if they had had Mr. Palmer's bill in force. Yet the advo- 
cates of repression in those days were not a race of tyrants. 
They were respectable citizens just like ourselves. They 
were merely mistaken. Can we be any more sure of our 
I infallibility than of theirs? And how do we know that we 
are infallible until we hear the men on the other side, how- 
ever excitable and given to threats.'' 

This is not indifferentism. We must take our stand for 
private property if we believe in it, put our backs to the 
wall, and fight for it with all our strength. Nevertheless, 
there are many ways of fighting. The American policy 
is to meet force by force, and talk by talk. 

Furthermore, as soon as the danger-test is abandoned, bad 
tendency inevitably becomes the standard of criminality. 
Any attempt to distinguish between liberty and license will 



LEGISLATION AGAINST SEDITION 211 

break down in administration for sheer vagueness, and 
sooner or later officials will swing toward the view of Lord 
Holt in 1704 : ''^ 

If men should not be called to account for possessing the 
people with an ill opinion of the government, no government can 
subsist; for it is very necessary for every government, that the 
people should have a good opinion of it. And nothing can be 
worse to any government, than to endeavor to produce animos- 
ities as to the management of it. This has always been looked 
upon as a crime, and no government can be safe unless it be 
punished. 

England in the eighteenth century and Russia in the nine- 
teenth *^ applied this test of bad tendency. The United 
States has hitherto preferred to follow the principle of 
Madison: ^^ 

Some degree of abuse is inseparable from the proper use of 
everything; and in no instance is this more true, than in that of 
the press. 

Consequently, the President's Message is attempting the 
impossible when it supports Mr. Palmer's sedition bill on this 
high ground: ^^ "With the free expression of opinion and 
with the advocacy of political change, however fundamental, 
there must be no interference, but toward passion and 
malevolence tending to incite crime and insurrection under 
guise of political evolution there should be no leniency." No 
one has yet invented a gun which will kill a wolf in sheep's 
clothing and will not hit a sheep. We should all be glad 
to have a law, " Bad men shall be imprisoned," if it would 
work, but we know that it would not. A law against " pas- 
sion and malevolence " is just as bad. Far wiser is the state- 
ment of the former Democratic President, just quoted, far 

esTuchin's Case, Holt 424 (1704). 

69 See the summary of Russian law in Freund, op. cit., § 471 note. 

70 Report on the Virginia Resolutions, 4 Elliot's Deb. (2 ed.), 598. 
Marshall told Talleyrand the same truth, Beveridge, II, 329. 

■!iNew York Times, December 3, 1919. 



212 FREEDOM OF SPEECH 

wiser the language in a later part of Mr. Wilson's own 
Message, which seems so inconsistent with the endorsement 
of the Sedition Bill that it might almost be the work of 
another man: 

The only way to keep men from agitating against grievances 
is to remove the grievances. An unwillingness even to discuss 
these matters produces only dissatisfaction and gives comfort to 
the extreme elements in our country which endeavor to stir up 
disturbances in order to provoke Governments to embark upon a 
course of retaliation and repression. The seed of revolution is 
repression. 

Most acts of violence urged as a reason for sedition legis- 
lation, the Gimbel bombs, the May explosions, the Centralia 
shooting, followed immediately on some act of suppression, 
— the Debs decision, the Roxbury Riot sentences, the Massa- 
chusetts Anti-Anarchy Act, raids on I.W.W. offices and 
statutes against Syndicalism. The men responsible for 
these outbreaks should be tried and severely punished if 
found guilty, as much as the Southern lynchers and the 
Omaha mob that nearly hanged the mayor. It is an alto- 
gether different matter to make these affairs the basis of 
further suppression. The advocates of such a policy are 
doing their best to get this country into the vicious circle 
of outrages, coercion, — coercion, outrages, from which John 
Morley spent his whole official career vainly trying to extri- 
cate Ireland and India.'^ 

Contrast the American policy of punishing acts and let- 
ting talk run to waste. We have stuck by the schoolboy 
maxim, " Sticks and stones will break my bones, but words 
will never hurt me." Recent riots which have nothing to 
do with radicalism show that our criminal machinery is very 
unsuccessfully dealing with acts of violence. That is its 
absorbing task. It has no more time than it ever had to 
bother with the men who merely talk. If there is any im- 
mediate danger of revolution, the Attorney General should 

'2 See especially the fine letter on the Phoenix Park murders, in his 
Recollections, I, 178. 



LEGISLATION AGAINST SEDITION 213 

be employing the Criminal Code instead of asking for a 
sedition law. If there is not, as he himself admits, then, much 
as every one of us dislikes the advocate of force and violence, 
we shall be wise if we seek remedial and not punitive methods 
to make his talk of no effect. In particular, let me mention 
three concrete reasons why a sedition law will fail to accom- 
plish its purpose of getting the really bad man and leaving 
valuable discussion untouched. 

In the first place, simple as a law against incitement to 
force and violence appears on its face, it will be a very dif- 
ficult statute to construe, unless the courts adhere closely 
to the ordinary rules of criminal attempt. Of course, the 
man who shouts, " We want to kill the President and blow 
up the Capitol," presents no difficulties, and he is the man 
whom most people who discuss the proposed statute suppose 
it is meant to reach. These few plain cases, which are 
almost labeled " force and violence," will form only a very 
small part of the prosecutions. For instance, the Attorney 
General wants to imprison the editors of radical newspapers 
who have, he says, " a subtle way " of placing their propa- 
ganda for the overthrow of the government before their 
readers, but the reader understands what is meant. ^^ The 
question is whether he or any one else can draft a statute 
which makes it possible for fallible human beings to distin- 
guish good attacks on the government from bad attacks 
which sound as if they were good. Jeffreys, Braxfield, and 
Kenyon, thought they were punishing " passion and malev- 
olence," but posterity has condemned them for interfering 
with the " advocacy of orderly political change." 

Whatever law is passed will be used to prosecute speeches 
and books full of general language. The question whether 
such language is advocacy of force and violence must of 
course be determined by a judge and jury. Such men are 
trained to decide about overt acts, but problems of " subtle " 
propaganda are an entirely different matter. The normal 
law of criminal attempt offers to this tribunal a considerable 
73 Investigation Activities of the Dept. of Justice, 11. 



214 FREEDOM OF SPEECH 

amount of tangible fact. There is, of course, a mental 
element, the intention of the defendant to bring about the 
criminal act, but in addition the jury must find a clear 
and present danger to society in view of the nature of the 
words and the surrounding circumstances. Now, unless the 
proposed sedition law practically codifies the ordinary rules 
of attempt, the most tangible factor of the crime disappears ; 
the jury can disregard the absence of danger in the external 
situation, and look merely at the intention of the prisoner 
and the nature of his words. This must be so, for the fed- 
eral act is expressly intended to prevent the remote possi- 
bility of revolution and punish violent language for its own 
sake. Consequently, the jury are cut loose entirely from 
overt acts and the world of the five senses. They are adrift 
on a sea of speculation. 

At the very outset the same controversy will arise as in 
Masses v. Patten. It is the old question of Mark Antony's 
funeral oration. Does a man advocate force and violence 
when he uses comparatively innocent words with the inten- 
tion of producing assassination and revolution? Or must 
the statute be confined to words which taken by themselves 
are directly provocative of assassination and revolution? 

Even this latter and narrower view involves great dif- 
ficulties of application. This is evident from the experience 
of the courts with existing federal legislation based on the 
same " force and violence " principle. The statute making 
" matter of a character tending to incite arson, murder, or 
assassination " indecent and non-mailable, has not yet been 
much construed,^* but abundant litigation has been caused 
by the statute which imposes imprisonment of five years 
maximum upon any one who knowingly and willfully makes 
a threat to take the life of the President or inflict bodily 
harm upon him.'^ The threat need not be communicated to 
the President, and if in a letter it need not be seen by any one 

74 U. S. Comp. Stat., 1918, §10381; Magon v. U. S,, 248 Fed. 201 
(C. C. A., 1918). 

75 U. S. Comp. Stat., 1918, § 10200 a; see 32 Harv. L. Bev. 724. 



LEGISLATION AGAINST SEDITION 215 

except officials, so that the element of dangerous circum- 
stances is eliminated. Already it has proved very hard to 
decide what words constitute a threat, and some of the prac- 
tical effects of the statute should discourage imitation. A 
Syracuse woman of German descent, exasperated by her fel- 
low employees who continually picked on her and called her 
the Kaiser, finally burst out that she would poison the Presi- 
dent if she had him there. She pleaded guilty before Judge 
Ray, and was fined $300, " not because the court regarded her 
as a dangerous person, but to show all quick-tempered or 
alien-minded persons that they must not threaten to do the 
President bodily harm or utter unpatriotic sentiments in 
such times as these." ^^ In another case, the words were, " I 
wish Wilson was in hell, and if I had the power I would put 
him there." The judges held this revolting language to be 
a threat to kill the President, because how could he be in 
hell unless he were dead.'' ^^ 

The kind of language which will be held to advocate force 
and violence under a peace-time Sedition Law may be clearly 
foreshadowed by the construction which the Supreme Court 
in the Abrams decision put upon the exhortation : 

Workers of the World! Awake! Rise! Put down your 
enemy and mine! Yes, friends, there is only one enemy of the 
workers of the world and that is Capitalism. 

Here is not a word to indicate violence or negative the 
use of political and economic pressure, but Justice Clarke 
declares : 



This is clearly an appeal to the workers of this country to 
arise and put down by force the Government of the United 
States. 

76 A Memorandum concerning Political Prisoners within the Juris- 
diction of the Dept. of Justice in 1919, 22, (in Harv. Law School 
Library). 

-^77 17. S. V. Clark, Bull. Dept. Just,, No, 101; affd., 250 Fed. 449 
(C. C. A., 1918). 



216 FREEDOM OF SPEECH 

If he is right, the traditional language of socialism be- 
comes advocacy of " force or violence," as has already been 
held of the general strike under the similar terms of the 
New York Anarchy Act. If Justice Clarke is wrong, lesser 
judges may err. In either case, the Sedition Law will 
become a drag-net for every form of radicalism. 

So far I have assumed that the nature of the words will 
determine criminality, and that if a man uses the ordinary 
language of political agitation with intent to produce a 
revolution, he will not be punishable. I doubt very much 
if the Act will receive any such narrow construction. When 
Judge Hand held in Masses v. Patten that the equally 
simple terms of the Espionage Act of 1917 would not be 
violated if the speaker stopped short of urging upon others 
that it was their duty or their interest to resist the law, 
he was reversed, and the upper court said that if the de- 
fendant is endeavoring to persuade to resistance, it is not 
necessary that the incitement to crime shall be direct. 
Enough " if the natural and reasonable effect of what is 
said is to encourage resistance." '^ The majority of the 
Supreme Court took the same position in the Schaefer case. 
In short, of the three elements of criminal attempt, (1) bad 
intention, (2) dangerous words, and (3) dangerous external 
circumstances, the third vanishes entirely, the second is 
whittled down to require only words of a bad tendency, and 
the first alone remains intact. And since the judges who 
construed the Espionage Act of 1917 will also construe the 
Sedition Law, they will probably interpret it in much the 
same way. We have traveled very far from the realm of 
overt acts. 

It is unnecessary to repeat the argument of the first 
chapter and the experience of the eighteenth century in 
England, that the risk of the suppression of opinion is very 
great when the bad political tendency of words and the bad 
intention of the defendant become the only tests of crim- 
inality. Furthermore, we must not forget that we can never 

T8 244 Fed. @ 640; 246 Fed. @ 38. 



LEGISLATION AGAINST SEDITION 217 

be sure that the tendency is bad or the intention evil. These 
are not visible facts. We have to depend on the opinions 
of the judge and jury as to the merits of the tendency and 
the morality of what they can guess about the inside of a 
man's head. Of course, one evidence and often the main 
evidence of bad intention will be the supposed bad tendency 
of the language he employs. In short, any peace-time Sedi- 
tion Law is open to exactly the objections wliich Jefferson 
stated in the Virginia Toleration Act,^" that when the ex- 
pression of opinion is made criminal, the tribunal wiU acquit 
or convict accordingly as the sentiments of the prisoner 
square with or differ from its own. 

To recapitulate, we began to discuss the Sedition Law with 
the assumption that it would punish only the man who 
talks out-and-out revolution and whom we know to intend 
out-and-out revolution. Such a man seems entitled to no 
protection. Now we see that we are not dealing with such 
a man at all. We must encounter much vaguer language 
and we can never be sure that a man's mind is bad. In its 
actual application the law must necessarily convict any 
man whom the judge and jury consider to be using language 
of bad political tendency with a bad intention, whether or 
not the judge and jury are right. The desirability of the 
statute ought to depend very largely on the question whether 
human beings are likely to be right in forming such a judg- 
ment. The answer is that history shows they are very 
liable to be wrong. 

Without the slightest imputation of corruption or malice, 
we can all agree that a juryman's judgment of the remote 
political and economic effects of a book or speech is in- 
evitably warped by his own views to a much greater degree 
than if he is determining the path of a bullet or the value 
of a house or even the effect of a lie on a woman's reputa- 
tion. And the moral quality of another's mind is even more 
difficult to determine fairly when there is no criminal act, as 
in ordinary crimes, to check it up by. A bad intention is 
79 Page 31, supra. 



218 FREEDOM OF SPEECH 

easily inferred from what we consider bad opinions. The 
consequence of such vague standards is that objectionable 
men and doctrines are easily decided to be advocating vio- 
lence. Thus, a Winnipeg strike leader has just been prose- 
cuted for sedition, solely on the ground in one count of the 
indictment that he " seditiously " published two verses of 
Isaiah, beginning, " Woe unto them that decree unrighteous 
decrees." ^'^ Intention, that is, presumed intention, becomes 
the essence of the crime, and the thing actually done imma- 
terial. Once more, the prisoner is convicted, not for what 
he does but for what he thinks. 

Whether we believe that the Espionage Act decisions were 
necessary in time of war or not, we ought to hesitate to 
enact in peace a statute which is sure to be construed as 
widely as the simple words of the 1917 Act, and to subject 
all adverse criticism of the government to the risk of sup- 
pression so forcibly presented by Justice Brandeis in a 
recent Espionage Act case : *^ 

The jury which found men guilty for publishing news items 
or editorials like those here in question must have supposed it 
to be within their province to condemn men not merely for 
disloyal acts but for a disloyal heart; provided only that the 
disloyal heart was evidenced by some utterance. To prosecute 
men for such publications reminds of the days when men were 
hanged for constructive treason. To hold that such harmless 
additions to or omissions from news items, and such impotent 
expressions of editorial opinion, as were shown here, can afford 
the basis even of a prosecution will doubtless discourage criticism 
of the policies of the Government. To hold that such publica- 
tions can be suppressed as false reports, subjects to new perils 
the constitutional liberty of the press, already seriously curtailed 
in practice under powers assumed to have been conferred upon 
the postal authorities. Nor will this grave danger end with the 
passing of the war. The constitutional right of free speech has 
been declared to be the same in peace and in war. In peace, too, 
men may differ widely as to what loyalty to our country demands ; 
and an intolerant majority, swayed by passion or by fear, may be 

80 "Quoting Isaiah in Winnipeg," A. V. Thomas, 109 Nation 850 
(January 3, 1920). The case was afterwards dropped. 110 ibid. 292. 
siSchaefer v. U. S., 251 U. S. 466, 493 (1920), dissenting opinion. 



LEGISLATION AGAINST SEDITION 219 

prone in the future, as it has often been in the past, to stamp as 
disloyal opinions with which it disagrees. Convictions such as 
these, besides abridging freedom of speech, threaten freedom f-t 
thought and of belief. 

Secondly, men who use revolutionary language should not 
be suppressed in the absence of very serious and pressing 
danger, because they almost always have a grievance. Very 
few people want to smash things for the fun of it like small 
boys breaking windows. Whether the -gr'ievance is well 
founded or not, the ^c-Tj^cnrLers of .the existing order ought to 
know about it so that they may correct it or show by 
counter-argument that it does not exist. The agitator 
would be much wiser and more effective if he expressed his 
case calmly without threats, but we ought not to punish him 
for this mistake. He is not an educated man, he is not a 
lawyer, he is not accustomed to weighing his words care- 
fully, and he is only too apt in a heated argument to let him- 
self go. And on the whole, society gains if he is free to do 
so. The worse the grievance, the more likely the victim 
is to get angry and urge violent measures. Yet that is the 
grievance which most needs removal.®^ Reformers who get 
excited are pretty sure to take the position that force is 
justifiable if peaceful methods fail to gain what they con- 
sider right. Even the supporters of existing institutions 
have been known to lose their tempers and suggest lamp- 
posts and ropes. In the past we have felt it wiser to let 
the opponents of the government talk than to cause much 
greater bitterness in them and in their friends by throwing 
them into prison. Nor will this treatment silence those who 
are really dangerous. A friend of mine wants all " Bol- 
shevists " shut up till the jails are so crowded that their feet 

82 See the thoughtful statement by Judge Cooley in his Constit'W- 
tional Limitations (7 ed.) 613, of the great danger of a rule aganist 
intemperate discussion, ending: "If they exceed all the proper bounds 
of moderation, the consolation must be, that the evil likely to spring 
from the violent discussion will probably be less, and its correction by 
public sentiment more speedy, than if the terrors of the law were 
Drought to bear to prevent the discussion." Mill adds very strong argu- 
ments against the same rule at the close of c. 2 of his Liberty. 



220 FREEDOM OF SPEECH 

hang out of the windows, but the daily letters from political 
Brisoners in the radical newspapers show that their tongues 
hang out too. Putting radicals to death is the only way 
to get rid of them, and for that we have lost our nerve. 
Anythii^^ff less only increases their power for harm. If they 
can say, 'This government of capitalists denies us a decent 
life and not: it won't even let us tell our wrongs," the natural 
conclusion is=. " If it will not let us talk, our only resort is 
to fight." The passage last quoted from the President's 
Message hammers this triilli h/^mp v 

Thirdly, a Sedition Act will suppress much discussion which 
is not within its terms. Men assume that such a law affects 
only a speech or a book which devotes itself entirely to 
the advocacy of violence. This is not so. For instance, 
any small conservative group in the community which wants 
to prevent radical agitators from bringing disagreeable facts 
to public attention will be enabled by such a statute to go 
through their speeches and pamphlets with a fine-tooth comb 
and probably find a sentence here or there which can be 
interpreted (in the light of the Abrams decision) as advo- 
cating revolution. Thus, it will be possible to imprison 
almost any radical agitator in the absence of any real 
danger of revolution. Of course, trivial offenses will not be 
punished in ordinary times, but during the excitement of a 
great strike or some other widespread unrest the partisans 
of law and order will hardly be able to resist the temptation 
to make use of this law to bottle up labor leaders and other 
agitators whom they fear and dislike. Witness the sentences 
of ten, fifteen, twenty years imposed upon leading Socialists 
under the Espionage Act, so that further activity on their 
part is conveniently prevented during the time they are 
likely to live. And in a government of laws and not of men, 
no one human being ought to be entrusted with the power 
to give or withhold the heavy sentences of a Sedition Law 
for the light offenses included within its provisions. 

The effect of a Sedition Law upon books is even more 
injurious. An ex post facto censorship of the press is 



LEGISLATION AGAINST SEDITION 221 

created by the provision that a book which advocates force 
and violence must not be sold or imported from abroad or 
transported from state to state. It may be asked, why 
should any one honestly want to possess a book which urges 
revolution or even the violation of law? Why should we 
allow such books to come into the country or be put on sale? 
It must be remembered that a book falls under the penalties 
of the law if only a part of it is revolutionary. There are 
many books and pamphlets which for the most part contain 
elaborate discussions of social and economic questions, which 
it is very desirable to read. Here and there the writer is 
so impressed with the hopelessness of legal change in the 
present system that he advocates resort to force if nothing 
else serves. That alone will render circulation of the whole 
book a heinous crime under this Act. Many of the classics 
of modem economics will be put on this new Index Expur- 
gatorius. The law will prevent a loyal citizen from obtain- 
ing from abroad or another state the works of Marx, 
Proudhon, Bakunin, or Stirner, and will make it criminal for 
a loyal bookseller to buy these books for him. 

One particular instance will show the evil of such a 
statute. Harvard University is now planning to collect in 
its library all books, pamphlets, posters, and other material 
relating to the Russian Revolution. After the French Revo- 
lution nothing of the sort was attempted for many years, 
and in consequence all collections of documents of that period 
are very imperfect. It is the intention of the Harvard 
Library to avoid such a loss in the case of the Russian 
Revolution, which everybody, no matter what his opinion 
of it may be, recognizes as one of the great events in the 
history of the world. Most of the pending sedition bills 
would make it a crime to import a large part of this material 
from Russia or even transport it from New York to Cam- 
bridge. 

Furthermore, if any one who obtains this revolutionary 
material runs the risk of long imprisonment, sober men who 
would read and refute it will leave it alone, and it will still 



222 FREEDOM OF SPEECH 

fall into the hands of agitators who are willing to take 
chances. The bulk of the people will be virtually ignorant 
of what the left-wing radicals are really planning. One of 
the most effective weapons against anarchy was an ex- 
haustive article in the New York Times ^^ translating an- 
archistic passages from the foreign language press. It 
warned the American people of the thought which we ought 
to seek to counteract by education, Americanization, con- 
structive propaganda, and the cure of grievances. Such an 
article would be criminal under most of the proposed legis- 
lation. The Attorney General's Report to the Senate could 
not be distributed because of its extracts from the revolu- 
tionary press. Prosecutions of radical newspaper editors 
cannot be fully reported in the daily press, so that the public 
cannot know what men are convicted for, and it will be pos- 
sible for the government under cover of such a practice to 
withhold from the people knowledge of punishment for legiti- 
mate political discussion. Even officials cannot lawfully 
import revolutionary literature under these bills, and an 
exception in their favor would be an insult to the citizens 
of the United States. This law is a kindergarten measure 
which assumes that the American people are so stupid and 
so untrustworthy that it is unsafe to let them read anything 
about anarchy and criminal syndicalism because they would 
immediately become converted. Above all, we shall not be 
able to meet this great danger of lawlessness if we refuse 
to look the enemy in the face. The habits of the ostrich 
are instinctive in many human beings, but they have not 
been conspicuous for success. 

Even if we could wisely dispense with these left-wing 
books, much less radical publications will become criminal 
if advocacy of revolution by force and violence is punished. 
For example, one of the sanest discussions of contemporary 
thought, which has had a large sale in this country, is 
Bertrand Russell's Proposed Roads to Freedom. Further 
distribution will become a crime because of its extracts from 

83 June 8, 1919. 



LEGISLATION AGAINST SEDITION 223 

the Communist Manifesto of 1848: "The Communists dis- 
dain to conceal their views and aims. They openly declare 
that their ends can be attained only by the forcible over- 
throw of all existing social conditions. Let the ruling classes 
tremble at a Communistic revolution." 

Or take his quotation from an anarchist song: 

Si tu veux etre heureux, 

Nom de Dieu! 
Pends ton proprietaire.^* 

Of course, any anti-socialistic book which gives an adequate 
historical account of its opponents will fall under the same 
condemnation. 

And we shall have some surprises nearer home. It is advo- 
cacy of revolution by force and violence to write : " I hold 
a little rebellion now and then is a good thing, and as neces- 
sary in the political world as storms in the physical." *** 
Out go the works of Thomas Jefferson. It is advocacy 
of change of government by assassination to say, " The 
right of a nation to kill a tyrant in cases of necessity can 
no more be doubted than to hang a robber, or kill a flea." ** 
Jefferson is followed by his old antagonist, John Adams, 
the author of the Sedition Law of 1798. The Declaration 
of Independence will be barred in this country as it was 
once upon a time in the Philippines, since it is a most elo- 
quent advocate of change in the form of government by 
force without stint or limit. And the censorship can hardly 
overlook Lincoln's First Inaugural: 

This comitry with its institutions belongs to the people 
who inhabit it. Whenever they shall grow weary of the exist- 
ing government, they can exercise their constitutional right of 
amending it, or their revolutionary right to dismember or over- 
throw it. 

84 Russell, op. cit.. 17, 53. 

85 Writings of Jefferson, ed. P. L. Ford, IV, 362; see also 870 and 467. 

86 Works of John Adams, ed. C. F. Adams, VI, 130. 



224. FREEDOM OF SPEECH 

It may be objected that of course no one will be prosecuted 
for selling such books. Perhaps not, but do we as a fair- 
minded people want a statute under which the very ideas 
which will be immune when cloth-bound in a respectable book- 
store will constitute a penitentiary offense in a Yiddish hand- 
bill? 

If this legislation is to be enforced with any impartiality, 
it must necessarily cut us off from our own revolutionary 
heritage and from the economic and political thought of 
Europe in our own time. During the last five years this 
nation has entered into the affairs of the world for the 
realization of noble aims. It cannot do this and at the 
same time propose to pass its existence for the next score 
of years like some Lady of Shalott, shut off from the tur- 
bulent life of European mankind. 

Much more could be said, but I hope it is now clear that 
the really bad man is only an incidental victim of any 
federal Sedition Law in time of peace. Indeed, it is only 
too probable that he will be ingenious enough to hide his 
tracks and escape. Meanwhile, the law will suppress the 
discussion of public questions at point after point. 

During the war the advocates of strong measures as- 
sured those who thought our traditional freedom of speech 
in peril, that suppression would disappear when the fight- 
ing stopped, and remarked with Lincoln that a man could 
not contract so strong an appetite for emetics during tem- 
porary illness as to persist in feeding upon them during 
the remainder of his healthful life.^' The war is over, act- 
ually if not technically, the Espionage Act has suspended 
any widespread operation till the next conflict, but nearly 
every state in the Union has proceeded to make the ex- 
pression of certain opinions criminal, and Congress is now 
considering a much more rigorous Espionage Act for times 
of peace. The truth is that persecution of unpopular doc- 
trines is not an emetic at all, but a drug. A nation can- 

87 Letter to Erastus Corning and others (June 12, 1863), Works of 
Lincoln, ed. Nicolay and Hay, VIII, 309. 



LEGISLATION AGAINST SEDITION 225 

not indulge in an orgy of intolerance and console itself 
like Rip Van Winkle with the thought that "This time 
doesn't count! " Nobody enjoyed gasless Sundays or sugar- 
less coffee so much that we are likely to continue them in 
peace, but the pleasure of being able to silence the pro- 
Germans and pacifists and Socialists who had irritated us 
in 1915 and 1916 was so agreeable in 1917 and 1918 that 
it will be abandoned with extreme reluctance, and we long 
for more suppression to satisfy the appetite which has been 
created contrary to our former national tradition of open 
political discussion. 

Consequently we ought to cross-question acutely our 
present conviction that the repression of ideas is essential 
to the public safety, and ask ourselves how far that con- 
viction results from the mood of the moment. Indeed, it 
may be conjectured that just as some soldiers were given 
ether to make them go " over the top " better, so a nation 
cannot enter whole-heartedly into the horrors of a war with- 
out some benumbing of its reasoning powers, from which 
it may not yet have recovered. Is it not psychologically 
probable that our minds have been so shaken by excitement, 
fear, and hatred, so stretched to one absorbing purpose, 
that they are slow to return to normal, and that we still 
crave something to fear and hate, some exceptional cause 
for which we can continue to evoke enthusiasm? 

A very serious situation confronts us. For three years 
the government has pursued the policy advocated by Judge 
Van Valkenburgh when he tried Rose Pastor Stokes for her 
denunciation of profiteering:^^ "The President could not 
stop in the face of the enemy and effect domestic reforms. 
We do not ordinarily clean house and hang out the bedding 
when there is a thunderstorm on. We wait until it is over, 
go dirty a little longer." A good deal of soiled linen has 
accumulated, and the consequences are far from agreeable. 
The discussion of the radicals is bound to be doubly violent 
because it was postponed, and now it can be postponed no 

88 Bull. Dept. Just., No. 106, p. 18. 



226 FREEDOM OF SPEECH 

longer unless we mean to suppress it altogether. By do- 
ing that we shall not end it, but only drive it underground. 

A Sedition Law is not the proper way to deal with an- 
archy. Outside of a few intellectuals, anarchy is the crea- 
tion of discontent, and this law will increase discontent. 
Nothing adds more to men's hatred for government than 
its refusal to let them talk, especially if they are the type 
of person anarchists are, to whom talking a little wildly 
is the greatest joy of life. Besides, suppression of their 
mere words shows a fear of them, which only encourages 
them to greater activity in secret. A widespread belief is 
aroused that the government would not be so anxious to 
silence its critics unless what they have been saying is true. 
A wise and salutary neglect of talk, coupled with vigorous 
measures against plans for actual violence and a general 
endeavor to end discontent, is the best legal policy toward 
anarchy and criminal syndicalism. 

To quote from an extra-judicial decision of Justice 
Holmes :«' 

With effervescing opinions, as with the not yet forgotten 
champagnes, the quickest way to let them get flat is to let them 
get exposed to the air. 

Undoubtedly, there are elements in our population, small 
in number, but reckless and aggressive, who are ready to 
act on incitement to revolution, but the real danger lies 
in the existence of large masses of unthinking radicals. 
This danger cannot be met directly by clubbing such men 
into loyalty. We must first understand the causes of their 
discontent, studying with open minds all the existing infor- 
mation, and then take constructive steps to end that dis- 
content and substitute positive ideals for those we want to 
drive out. To modernize an old illustration from Herbert 
Spencer, any one who has watched a tinsmith mend a crum- 

89 Letter to the Harvard Liberal Club, reprinted in 21 New Republic 
250, and Boston Herald, January 13, 1920. 



LEGISLATION AGAINST SEDITION 227 

pled mud-guard on an automobile will observe that he never 
pounds the protuberant spot. To do so would either be in- 
effective or would simply raise a hump at some other place. 
Instead, he begins at a distance and hammers all around 
the critical point, gradually drawing the metal away from 
it until all is symmetrical as before. 

If we have taken reasonable precautions against violence, 
we should not be disappointed at not securing absolute una- 
nimity among our population on political and economic mat- 
ters. If Americanism means anything concrete, it certainly 
means tolerance for opinions widely different from our own, 
however objectionable they seem to us. Such is the tradition 
handed down to us by Roger Williams and Thomas Jeffer- 
son. In the past we have been proud to believe that the 
arguments for law and order, the common sense of the 
American people, including those who have come from Europe 
to help build our industries, and the noble qualities of our 
institutions, would win out over any revolutionary talk or 
writing. The proposed Sedition Bills show a serious dis- 
trust in these three great stabilizing forces of American 
life. Not for the sake of the radicals, but for our own sake, 
should we oppose this unprecedented legislation, whose en- 
forcement will let loose a horde of spies and informers, offi- 
cial and unofficial, swarming into our private life, stirring 
up suspicion without end, making all attacks on government 
either impotent or unsafe. The supporters of this gag- 
law assume that our patriotism and our institutions are so 
weak as to crumble away at any talk of revolution. Surely 
that time has not come, will never come. Let us put an 
end once for all to this cowardice, and take to heart the 
words of a great English Liberal : ^^ 

We talk much — and think a great deal too much — of the wis- 
dom of our ancestors. I wish we could imitate the courage of 
our ancestors. They were not ready to lay their liberties at the 
feet of the Government upon every vain or imaginary alarm. 

90 Lord John Russell, quoted in G. W. E. Russell, Prime Ministers, 
N. Y,, 1919, 21. 



228 FREEDOM OF SPEECH 

There should be no legislation against sedition and an- 
archy. We must legislate and enforce the laws against the 
use of force, but protect ourselves against bad thinking and 
speaking by the strength of argument and a confidence in 
American common sense and American institutions, includ- 
ing that most characteristic of all, which stands at the head 
of the Bill of Rights, freedom of thought. 



CHAPTER V 
THE DEPORTATIONS 

That imprisonment should continue an hour longer than it 
ought by laWj or that there should be constraint of limb or voice 
that the law does not allow, is ever a consideration that should 
call off courts of justice from the ordinary deliberations on 
matters of property, however great, until this question be de- 
termined and this great wrong, if it be one, be redressed. — 
William M. Evarts, Argument in the Lemmon Slave Case. 

As long" as Congress refuses to follow the disastrous prece- 
dent of 1798 and enact a peace-time Sedition Law, the 
government cannot do much to suppress " evil-thinking " 
among citizens of the United States. It is not entirely 
powerless, for violent anarchistic books and periodicals can 
be excluded from the mails, and the Espionage Act will 
remain in force as long as we are at war with Germany ; in 
other words, for an indeJSnite future. As we have seen, Mr. 
Burleson has not scrupled to use it in his effort to wreck 
the New York Call, and Mr. Palmer, while professing to 
limit the Act to " acts and utterances which tended to 
weaken the waging of actual hostilities," ^ prosecuted and 
convicted Socialists for requesting an amnesty for political 
prisoners months after the armistice, and closed up the 
Seattle Union-Record a year after the last shot was fired. 
The outcry which these high-handed acts have drawn from 
even the conservative press has deterred the Attorney Gen- 
eral from much independent action, though his agents are 
frequently reported as co-operating with state officials in 
raids under local anarchy acts on radical headquarters. 

In the absence of a new Sedition Law against radical 
citizens, the government has seized upon the new Alien Law 
and used it with relentless vigor. The first conspicuous event 

1 Investigation Activities of the Department of Justice, 6. 

229 



230 FREEDOM OF SPEECH 

was the sailing of the transport " Buford " on December 
21, 1919, with two hundred and forty-nine Russians. This 
was followed in January by a carefully prepared round- 
up in all parts of the country in which over four thousand 
persons were arrested under deportation charges. 

While the right of the Federal Government to punish sedi- 
tion is open to serious doubt, there can be no question of 
its affirmative power to exclude aliens from this country or 
to deport them even though they are admitted. Although 
no clause in the Constitution expressly gives this power, it 
has been held by the United States Supreme Court in the 
Chinese Exclusion Cases to be an incident of the sovereignty 
and right of self-preservation necessarily conferred by the 
Constitution upon the government it created.^ 

I. The Statute as to Deportable Radicals 

Various classes of aliens besides the Chinese have long 
been subject to exclusion and expulsion for such obvious 
objections as conviction of crime, insanity, pauperism, etc., 
but it was not until 1903 that the possession or expression 
of opinions was first made a disqualification. In consequence 
of the death of President McKinley, Congress refused entry 
to the United States to anarchists, persons advocating the 
forcible overthrow of our government or all government, or 
the assassination of public officials, as well as persons dis- 
believing in or opposed to all organized government or be- 
longing to organizations teaching such disbelief or opposi- 
tion.^ Other types of extreme radicals were added by sub- 
sequent legislation.* The present statute, enacted toward 
the close of the war, specifies the following proscribed 
classes : ^ 

2 Nishimura Ekiu v. U. S., 142 U. S. 651, 659 (1892) ; see other cases in 
1 Willoughby on the Constitution, 251 flF. 

3 Aci, March 3, 1903, c. 1012, §§ 2, 38. 

* Act, February 20, 1907, c. 1134, §§ 2, 38; Act, February 6, 1917, c. 29, 
in U. S. Comp. Stat., 1918, §§428914 b and jj. 

5 Act of October 16, 1918, c. 186; U. S. Comp. Stat., 1919 Supp., 
§ 4289^4 b. This has been amended since the events narrated in this 



THE DEPORTATIONS 231 

Aliens who are anarchists; aliens who believe in or advocate 
the overthrow by force or violence of the Government of the 
United States or of all forms of law; aliens who disbelieve in or 
are opposed to all organized government; aliens who advocate or 
teach the assassination of public officials ; aliens who advocate 
or teach the unlawful destruction of property; aliens who are 
members of or affiliated with any organization that entertains a 
belief in, teaches, or advocates the overthrow by force or violence 
of the Government of the United States or of all forms of law, 
or that entertains or teaches disbelief in or opposition to all organ- 
ized government, or that advocates the duty, necessity, or pro- 
priety of the unlawful assaulting or killing of any officer or 
officers, either of specific individuals or of officers generally, of 
the Government of the United States or of any other organized 
government, because of his or their official character, or that 
advocates or teaches the unlawful destruction of property. 

Such aliens are not only refused admission and put out 
if they succeed in getting in, but if they acquire these views 
or join these associations after their entry into this coun- 
try, they are to be deported without any time limit, no mat- 
ter how long before 1918 they came to the United States. 

Like the federal " force and violence " bills discussed in 
the preceding chapter, this statute at first sight seems to 
apply to really bad men, and to effect nothing but desirable 
results. Once again, however, we ought to defer judgment 
until we have examined the actual operation of the statute. 
The life of a law is not in its words, but in its enforcement. 
In this case we do not have to rely on inference and argu- 
ment with respect to the future, for the deportation laws 
have been in existence long enough to provide us with abun- 
dant data from past experience, upon which we may base 
our decision as to the wisdom and justice of this national 
course of action. 

chapter to Include aliens convicted under the Espionage Act and other 
war statutes (Act, May 10, 1920, No. 197), or advocating sabotage, or 
injury to property, or assaults on officials for any reason; giving or 
lending money Is proof of advocacy or membership (Act, June 5, 1920, 
No. 262). On the last statute, see John Lord O'Brian, "The Menace of 
Administrative Law," address to Maryland Bar Association, June 26, 
1920. 



232 FREEDOM OF SPEECH 

II. The Administrative Machinery for Deporting Radicals 

" I'll be judge. I'll be jury," 

Said cunning old Fury ; % 

" I'll try the whole cause. 

And condemn you to death." — Alice in Wonderland. 

The most important question with any le^slation which 
affects human happiness is, what kind of men administer' 
its provisions? Are they an impartial judge and jury, a 
government official, a secret council, a star chamber.? The 
answer to this question in our problem is the following sen- 
tence : ** 

In every case where any person is ordered deported from the 
United States under the provisions of this Act, or by any law or 
treaty, the decision of the Secretary of Labor shall be final. 

No judge or jury passes on the important question whether 
an alien who has lived here for many years actually holds 
or has expressed any of the objectionable views specified 
as grounds for deportation. No judge or jury decides 
whether he belongs to an objectionable organization or 
whether it really is objectionable. All these vital issues of 
fact are determined by the Secretary of Labor, or more 
often by his subordinates, the immigration officials. And 
there is for all practical purposes no appeal from those offi- 
cials to any court, not even to the Supreme Court of the 
United States. The law takes the position that deporta- 
tion is not a criminal proceeding and involves no punish- 
ment. It is simply an exercise of the right of every sov- 
ereign state to determine who shall reside within its borders. 
Therefore, the foreigner who is expelled without a hearing 
in court, no matter how long he has lived in the United 
States, no matter if he must leave a house and other cher- 
ished possessions behind him, is not deprived of life, liberty, 
or property without due process of law. 

6 U. S. Comp. Stat., 1918, § 4289^ jj. Italics mine. 



THE DEPORTATIONS 233 

Such wide powers have not been acquired by the execu- 
tive branch of our government all at once or without a 
struggle.' The doctrine that administrative decisions on 
questions of fact may be made conclusive without any ju- 
dicial review originated in our law in controversies growing 
out of the distribution of public property. When the gov- 
ernment is giving away money which it has acquired under 
a treaty or is making free grants of public land, it may justly 
annex whatever conditions it pleases to its gifts and dele- 
gate to anybody it selects the power to say how and where 
those gifts shall go. The recipients of its generosity can- 
not complain if they must dispense with judicial proceed- 
ings and abide by the decision of some administrative body 
like the Land Department. If they are denied relief by 
such officials, they lose nothing which they had before. 

Similar powers were soon accorded from obvious necessity 
to tax officials. The collection of the public revenues would 
become impossible if every dispute of fact over the value 
of an imported scarf or the size of an income could be car- 
ried by the disgruntled taxpayer into the courts. The com- 
plexity of the business and the requirement of speed make 
it very desirable that administrative officers should execute 
any valid tax law without interruption so long as no issue 
of law is involved; on the other hand, their decisions do not 
affect the liberty of the citizen or interfere with the normal 
activities of his life. 

When the doctrine was extended to exclusion from the 
mails, its effect became much more serious. The business 
man who wishes to communicate with prospective buyers and 
sources of supply is not a recipient of public bounty like 
the occupant of free land. While he does make use of gov- 
ernmental machinery, he pays for what he gets, and in sub- 

7 The leading cases are in 2 Willoughby on the Constitution, c. LXIV. 
A very valuable article by the Assistant Secretary of Labor, Louis F. 
Post, is "Administrative Decisions in Connection with Immigration," 
10 Pol. Sci. Rev. 251 (1916). This supports my conclusions. The same 
volume contains several other articles on administrative decisions. See 
the Bibliography for further references on the Post-oflBice. 



234 FREEDOM OF SPEECH 

stance the transaction is like buying municipal water or 
riding on a national railway. The opportunity to obtain 
essential services is a condition of earning a livelihood and 
very possibly of life itself. If a city cuts off a man's water, 
he cannot dig a well ; if he is kept off the trains, he cannot 
walk; and in the same way the factory or newspaper which 
is excluded from the mails is denied any other practicable 
means of systematic intercourse. The decision virtually 
ruins its business. All questions of constitutionality aside, 
Congress ought to consider the advisability of continuing 
to place such a destructive power in the Postmaster Gen- 
eral instead of in an impartial tribunal which would not be 
both judge and prosecuting attorney. Questions of the 
weight and contents of letters are administrative like tariff 
valuations, but the tax department does not furnish an anal- 
ogy for exclusion orders in the post-office for fraud and 
other reasons, because such controversies are comparatively 
few and similar in nature to those which courts are accus- 
tomed to settle, besides being far-reaching in their conse- 
quences to the community as well as to the prohibited period- 
ical. The cases I have already discussed of exclusion from 
the mails for alleged indecency or disloyalty show the possi- 
bilities of danger when the attainment and dissemination of 
truth are regulated by the arbitrary will of one man. 

All these considerations apply a fortiori to deportation, 
and especially deportation for opinions. Exclusion of a 
newly arrived alien by administrative fiat is not a serious 
hardship, for he simply returns to his old life and takes 
up the threads where he recently dropped them, but expul- 
sion after long residence is another affair. The matter at 
stake here is not a gift from the government, or the pay- 
ment of a tax which leaves substantial property untouched, 
or even the existence of a business. Liberty itself, long- 
established associations, the home, are at the mercy of a 
bureaucracy. Although technically Justice Gray was right 
in saying that it is not a punishment to deport an alien who 
has been domiciled here many years, but only a method of 



THE DEPORTATIONS 235 

removing him to his own country because he has not com- 
plied with the conditions for residence imposed by our gov- 
ernment,^ nevertheless, practically it is nothing but a pun- 
ishment, which, as Justice Field pointed out, is " beyond all 
reason in its severity." 

As to its cruelty nothing can exceed a forcible deportation from 
a country of one's residence, and the breaking up of all the 
relations of friendship, family, and business there contracted. 
The laborer may be seized at a distance from his home, his 
family, and his business and taken before the judge [now the 
immigration inspector] for his condemnation, without permission 
to visit his home, see his family, or complete any unfinished busi- 
ness.^ 

This power to tear a man up by the roots is now con- 
ferred upon officials of the government, the same officials 
who prefer charges against him, and is extended from such 
definite facts as the race and birth of a Chinaman to such 
vague facts as the opinions and political affiliations of a 
European. Whatever the constitutional powers of the gov- 
ernment, it ought not to deprive a man of liberty and hap- 
piness without being sure after a thorough and impartial 
investigation, such as a judge and jury in open court would 
afford, that the alien actually falls within a proscribed class. 
It is popular to defend the present arbitrary methods on 
the ground that he is only an alien; if he wants to acquire 
a home here, why does he not become naturalized? He can- 
not be naturalized for five years, and even after that time 
his omission ought not to make him an outlaw. He should 
not be dragooned into citizenship, and incidentally citizens 
acquired through pressure are not always desirable. A for- 
eigner often has honest and even praiseworthy motives for 
retaining his old loyalties. He may desire to return to his 
birthplace in his old age after he has saved a competence 
by building roads and railways for us, or as in the case of 
most Russians in our midst before 1917, he may be waiting 

sFong Yue Ting v. U. S., 149 U. S. 698, 730 (1892). 
» Dissenting opinion in same case, 769. 



236 FREEDOM OF SPEECH 

here with the hope that a tyranny at home will be over- 
thrown. Surely, we do not reproach Americans who spend 
their lives in England or France without renouncing their 
allegiance. Why should we regard similar conduct by for- 
eigners in this country as worse than crime, for even crim- 
inals would not receive such harsh and summary treatment.'' 
We have no business to act and talk as if we owed abso- 
lutely nothing to our unnaturalized immigrants. Most of 
them were brought in at the earnest desire of the very per- 
sons and corporations that are now loudly calling for more 
deportations. For years these foreigners have done our 
dirty work, and we might at least give them a jury trial 
before we throw them out neck and heels. Have we no con- 
fidence in our own institution? Every alien must expect to 
be expelled, if he furnishes legal cause, just as he must ex- 
pect to be punished for an oifense, but in each case we should 
be proud as citizens of a free land to furnish him the best 
legal machinery we can devise to ascertain whether or not 
the ground for governmental action really exists. 

Let us now look more closely at the method which we 
actually employ to determine the political and economic 
views of an alien. Is it equivalent to a jury trial? Even 
that, I have tried to show, is a hazardous means for the 
investigation of another man's words and opinions, and often 
liable to err, but it is the best practicable means if we are 
going to inquire into those facts at all. What are the 
chances of error in the present deportation tribunals? 

This can be best determined from a consideration of the 
actual practice as described by Judge Holt of the United 
States District Court for Southern New York : ^° 

There are a number of officers called inspectors of immigra- 
tion, connected with the office of the commissioner. Complaint 
that an alien is in this country in violation of law is usually made 
by one of these inspectors. The information upon which he 
bases the charge may have been obtained by himself upon 

10 Bosny v. Williams, 185 Fed. 598 (1911) ; see also Immigration 
Rules of May 1, 1917, Rule 22. 



THE DEPORTATIONS 237 

investigation, or may have been furnished to him by others. 
Frequently such information is furnished by the city police, 
or by enemies of the person charged, acting through malice or 
revenge. Affidavits are obtained and are sent by the inspector to 
the Secretary at Washington, who, if he thinks a proper case is 
made out, issues a warrant for the arrest of the persons charged. 
This warrant is usually intrusted for execution to the inspector 
who has made the charge, and he subsequently usually takes en- 
tire charge of the case. After the aliens have been taken to 
Ellis Island, they are held in seclusion and not permitted to 
consult counsel until they are first examined by the inspector, 
under oath, and their answers taken by a stenographer. After 
this preliminary inquisition has proceeded as far as the inspec- 
tor wishes, the aliens are then informed that they are entitled 
to have counsel, and to give any evidence they wish in respect 
to the charge. Thereafter a further hearing is had before the 
inspector, at which further evidence may be given by him, and 
the aliens may appear by counsel and offer evidence in their own 
behalf. The inspector thereupon reports whether in his opinion 
guilt has been established, and the evidence taken and the in- 
spector's finding are sent to the Secretary of Commerce and 
Labor at Washington, who thereupon makes an order either 
for the deportation or the release of the aliens. It is, of course, 
obvious that such a method of procedure disregards almost every 
fundamental principle established in England and this country for 
the protection of persons charged with an offense. The person 
arrested does not necessarily know who instigated the prosecution. 
He is held in seclusion, and is not permitted to consult counsel 
until he has been privately examined under oath. The whole 
proceeding is usually substantially in the control of one of the 
inspectors, who acts in it as informer, arresting officer, inquisitor, 
and judge. The Secretary who issues the order of arrest and 
the order of deportation is an administrative officer who sits 
hundreds of miles away, and never sees or hears the person pro- 
ceeded against or the witnesses. 

The proceedings are in secret. The public is excluded, 
so is the press, so are the alien's wife and children. His in- 
ability to speak English and the inspector's frequent in- 
ability to speak anything else make the record unsatisfac- 
tory, but the Secretary of Labor sees nothing else. Further- 
more, this record is often made by the inspector himself, 
and he may stop it whenever he wishes, after a good case is 



238 FREEDOM OF SPEECH 

made out. Like a policeman, like a district attorney, it is 
his business to get results. Unless the alien is represented 
by counsel there is some chance that matter in defense will not 
get on the record.^^ While he has a right to ask for counsel 
at such stage in the proceedings as the inspector shall deem 
proper, being defenseless until then, he is not, like a crim- 
inal, entitled to receive counsel at the expense of the govern- 
ment. Furthermore, the alien who does not speak English 
and is shut up on an island, often ignorant and out of funds, 
does not readily obtain a lawyer on his own initiative. Thus 
he may be rigorously cross-examined in the absence of coun- 
sel, not only on what he did and said, but on what he thinks. 
The proceedings are rarely reported in the newspapers, not 
being open, so that public opinion cannot easily be focussed 
on an unjust case. Once the alien is deported, all mistakes 
and wrongs are covered by the intervening ocean. 

" If this," said Justice Brewer,^" " be not a star chamber 
proceeding of the most stringent sort, what more is neces- 
sary to make it one.? " 

The alien has two slight possibilities of relief from a wrong 
decision of the inspector. The review by the Secretary of 
Labor has already been shown by Judge Holt to be inade- 
quate, because the Secretary never sees the alien or the wit- 
nesses, but only the record, which was made up by the very 
person whose finding is attacked. Moreover, the Secretary 
of Labor determines and enforces the policy of the govern- 
ment in respect to deportations. Congress should refuse 
in so serious a matter to make a man final judge in his own 
cause. Secondly, the alien may in rare instances obtain a 
write of habeas corpus, which will bring his case before a 
United States judge. This remedy is very limited, for the 
conclusions and orders of the immigration officials can be 
attacked by judicial proceedings only if it is shown " that 
the proceedings were manifestly unfair, that the action of 

11 Low Wah Suey v. Backus, 225 U. S. 460 (1912), holds valid the rule 
denying counsel until after the preliminary hearing. 

12 U. S. V. Ju Toy, 198 U. S, 253, 268 (1905). 



THE DEPORTATIONS 239 

the executive officers was such as to prevent a fair investi- 
gation, or that there was a manifest abuse of the discre- 
tion committed to them by the statute ; " ^^ or if there was 
an error of law, for instance, in construing the statutory 
definition of some deportable class. In the absence of fraud, 
a finding of fact will be reversed only when there is a com- 
plete absence of evidence to justify it. So long as there is 
any evidence at all in its support, no matter how overwhelm- 
ingly this is outweighed by the testimony on behalf of the 
alien, a court cannot interfere. 

The risks of grave injustice under this system are shown 
by a recent case.^* A Canadian woman in northern New 
York, who had always earned her own living and owned 
several hundred dollars, part of it in local real estate, be- 
side having well-to-do relatives, was ordered to be deported 
as a person " likely to become a public charge." The evi- 
dence showed that the alien had excited the jealousy of a 
married woman by receiving from her husband lessons in 
bicycle riding evenings, and it was suggested that th2 wife 
might sue this woman for alienation of his affections, and 
might in this suit take all her property and leave her with- 
out means of support. Also the woman might be prosecuted 
on a criminal charge, and eventually imprisoned at public 
expense. On these facts the immigration inspector arrested 
her and ordered her deportation, and his decision was affirmed 
by the Secretary of Labor. Obviously the whole case was 
framed up by a personal enemy, as many cases against 
radicals may have been framed up during this past winter. 
In this instance the alien was released by the court, because 
there was not a single fact to support the finding, but if 
there had been a scintilla of evidence the judge could have 
done nothing. Injustice of this kind may easily occur with- 
out any corruption on the part of the inspector if he is 
zealous in enforcing the deportation law and anxious to 

13 Low Wah Suey v. Backus, supra, 468; Gegiow v. Uhl, 239 U. S, 3. 
i4J?x parte Mitchell, 256 Fed. 229 (1919). See Post, Deportations 
Testimony, 80, 247, for other framed-up cases. 



240 FREEDOM OF SPEECH 

gratify the eagerness of his superior officers and satisfy 
tlie incessant demand of influential newspapers and organi- 
zajtions ^^ for a high record of expulsions. 

" In the administration of preventive justice," wrote James 
Madison, " the following principles have been held sacred : that 
some probable ground of suspicion be exhibited before some 
judicial authority, that it be supported by oath or affirmation; 
that the party may avoid being thrown into confinement, by find- 
ing pledges or sureties for his legal conduct sufficient in the judg- 
ment of some judicial authority, that he may have the benefit of 
a writ of habeas corpus, and thus obtain his release if wrongfully 
confined ; and that he may at any time be discharged from his 
recognizance, or his confinement, and restored to his former 
liberty and rights, on the order of the proper judicial authority." 

All these principles he declared to be violated by the Alien 
Act of 1798.^*^ They are violated even more by the Alien 
Act of 1918. The hated statute of 1798 was a temporary 
measure called forth by impending war, and provided that 
the foreigner should first be served with a notice and given 
time to depart voluntarily. Only if he failed to do so was 
he arrested. Of this statute Madison said, " If a banish- 
ment of this sort be not a punishment, and among the sever- 
est of punishments, it will be difl^icult to imagine a doom to 
which the name can be applied." The Act of 1918 is a 
permanent measure, and provides for immediate arrest, con- 
finement, and expulsion, without notice, or opportunity to 
close up one's affairs and embark freely. Even if such pro- 
cedure has been declared constitutional, it is nevertheless 
dangerous that it can be inflicted with practically no judicial 
safeguards, " on mere suspicion, by the single will of an 
executive magistrate, on persons convicted of no prison 
offense against the laws of the land." 

15 See, for instance, the constant complaints that deportations are 
few, in the weekly letter issued by the President of the National 
Founders' Association, who has suggested that the entire administration 
of the law be transferred from the Secretary of Labor to the Attorney 
General. Such a transfer would probably involve sweeping changes in 
personnel among immigration inspectors. 

16 Act of June 25, 1798, c. 63; Madison's Report on the Virginia 
Resolutions, 4 Ell. Deb. (2 ed.) 581, 682. 



THE DEPORTATIONS 241 

III. The Raids of January, 1920 

You may take my word for it, my dear Viceroy, that if we 
do not use this harsh weapon with the utmost care and scruple — 
always, where the material is dubious, giving the suspected man 
the benefit of the doubt — you may depend upon it, I say, that 
both you and I will be called to severe account, even by the people 
who are now applauding us (quite rightly) for vigor. — Morlev, 
to Lord Minto, on deportation from India. 

Such is the machinery which Attorney General Palmer 
has set in motion to bring thousands of radicals within the 
provisions of the Alien Act of 1918. Powerful as this ma- 
chinery is, it is subjected by the law to three limitations 
in the interest of liberty. (1) The Act provides that arrest 
must be on a warrant signed by the Secretary of Labor, 
and the issue of the warrant is carefully regulated by the 
Immigration Rules. ^^ (2) A house or a meeting-hall can- 
not be searched, and papers or other property cannot be 
seized, even with a search-warrant, for there is no law which 
authorizes the issue of a search-warrant in deportation pro- 
ceedings.^® (3) The alien must be given a fair admistra- 

17 Immigration Rules, 1917, Rule 22, Subd. 3. " Application for 
warrant of arrest. The application must state facts showing prima 
facie that the alien comes within one or more of the classes subject to 
deportation after tentry, and . . . should be accompanied by some sub- 
stantial supporting evidence. ... If based upon statements of per- 
sons not sworn officers of the Government . . . the application should 
be accompanied by the affidavit of the person. . . . Telegraph appli- 
cation may be resorted to only in case of necessity, or when some sub- 
stantial interest of the Government would be subserved thereby, and 
must state (a) that the usual written application is being forwarded by 
mail, and (b) the substance of the facts and proof therein con- 
tained. ..." 

18 The subject ofl unreasonable searches and seizures will be discussed 
in the next chapter. There are some statements that the Fourth 
Amendment does not apply to deportation proceedings, Fong Yue Ting 
V. U. S., 149 U. S. 698, 730 (1893); Re Chin Wah, 182 Fed. 256 (1910), 
but the contrary has been held in a much cited case, U. S. v. Wong 
Quong Wong, 94 Fed. 832 (1899). See also Moy Wing Sun v. Prentis, 
234 Fed. 24 (C. C. A. 1916). In Weeks v. U. S., 232 U. S. 392 (1914), 
Day, J., said of the Fourth Amendment: "This protection reaches all 
alike, whether accused of crime or not " ; and in Ex parte Jackson, 96 
U. S. 727 (1877), it was applied to administrative opening of the mails. 
It is inconceivable that the Amendment has no application to non- 



242 FREEDOM OF SPEECH 

tive trial, in accordance with the Rules. (4) The deporta- 
tion laws apply only to aliens. 

It is also some mitigation of the drastic features of this 
machinery that it has been entrusted by Congress, not to the 
Department of Justice which is engaged in the prosecution of 
crime, but to that Department which was created " to foster, 
promote, and develop the welfare of the wage earners of 
the United States," and is daily concerned with aiding mil- 
lions of human beings, many of them poor, comparatively 
helpless, and unacquainted with our language and institu- 
tions. The Department of Justice may furnish legal advice 
or lend its agents for use under the control of the Department 
of Labor, but it has no more legal right or power to deal 
with the expulsion of aliens than has the Department of the 
Interior. 

The raids of January, 1920, have been fully described in 
the opinion of Judge George W. Anderson in the Colyer 
case. This book will therefore only discuss briefly the ex- 
tent to which the four principles of personal liberty just 
stated have been observed and the relative shares which the 
Departments of Justice and Labor have taken in these raids. 
My discussion is not based upon the evidence of aliens or 
journalists, however credible, but upon the statements of 

criminal proceedings though of course the test of what is reasonable is 
different. In re Pacific Ry. Com'n, 32 Fed. 241, 251 (1887); I. C. C. v. 
Brimson, 154 U. S. 447, 478 (1894). 

Moreover, searches and seizures without search-warrant violate the 
" due process " clause of the Fifth Amendment, except a few special 
cases like searching the person only of a man arrested for a crime. A 
warrant of arrest does not authorize search. And the Secretary of 
Labor has no power to issue search-warrants in immigration proceed- 
ings under any Act of Congress. Only a warrant issued by a court 
(under U. S. Comp. Stat, 1918, § 1239; Stern v. Remick, 164 Fed. 781) 
can make legal searches and seizures of the property of an alien not 
charged with crime, and no statute authorizes immigration ofBcials 
to obtain a judicial search-warrant in the absence of judicial pro- 
ceedings. No lawful search can be made in immigration proceedings 
with or without a search-warrant. Therefore, it seems probable that 
all the evidence seized in the recent raids cannot be used by the gov- 
ernment, Silverthorne Lumber Co. v. U. S., 40 Sup. Ct. 182 (1920); 
and that actions for damages can be brought. Illegal searches and 
seizures were a ground for the release of an LW.W. in Ex parte 
Jackson, 263 Fed. 110 (1920), and of Communists in the Colyer case. 



THE DEPORTATIONS 243 

sworn officials of the United States, and so far as possible 
upon the testimony of Attorney General Palmer/" 

" Appreciating," he says, " that the ci'iminal laws of the 
United States were not adequate to properly handle the radi- 
cal situation, the Department of Justice held several confer- 
ences with the officials of the Department of Labor and came 
to an agreeable arrangement for the carrying out of the ' de- 
portation statute.' " Whether the Secretary of Labor, 
William B. Wilson, and the Assistant Secretary, Louis F. 
Post, were informed of the " plans laid by^ the Department of 
Justice for the apprehension of members of the Communist 
Party and the Communist Labor Party," he does not state. 
The officials with whom he was in close co-operation were the 
third ranking officer, Mr. J. W. Abercrombie, a member of 
Mr. Palmer's Department detailed to serve as solicitor to the 
Department of Labor and vested with the powers of Acting 
Secretary when his superiors were absent or otherwise oc- 
cupied, and Mr. A. Caminetti, the Commissioner General of 
Immigration, whose relations with Mr. Post have long been 
strained. Mr. Abercrombie signed 3,000 warrants for the 
arrest of persons alleged by affidavits of Mr. Palmer's agents 
to be members of the two Communist parties. Mr. Caminetti 
instructed the immigration officials that the aliens covered by 
the warrants would be arrested simultaneously by the De- 
partment of Justice and " held on local charges " until the 
officials had served the warrants that night or the following 
day. The agents would assist in serving warrants, perfecting 
detention arrangements, and providing evidence, but they 
could not legally conduct the deportation hearings, since this 
duty was delegated by statute to the immigration inspectors. 

The character of the raids is best shown by the Instruc- 
tions issued by Mr. Palmer's Bureau of Investigation to his 

19 Palmer Deportations Testimony; Post Deportations Testimony; 
testimony and instructions of government oflBicials in Report upon the 
Illegal Practices of the United States Department of Justice, by 12 
lawyers, Natl. Popular Govt. League, Wash., May, 1920; opinion of 
Judge G. W. Anderson in Colyer and Katzeff v. Skefiangton, 265 Fed. 17 
(cited hereafter as Colyer opinion). The only sentence based on an 
unoflScial source is that on Detroit conditions. 



244 FREEDOM OF SPEECH 

Secret Service men throughout the country. Those in New 
England are reproduced in Judge Anderson's opinion. A 
slightly different form is reprinted on the front page of the 
New York Tijnes, January 3, 1920: 

INSTRUCTIONS 

Our activities will be directed against the radical organiza- 
tions, known as the Communist Party of America and the Com- 
munist Labor Party of America, also known as Communists. 

The strike will be imade promptly and simultaneously at 
8:30 P.M. in all districts. The meeting places of the Communists 
in your territory, and the names and addresses of the officers and 
heads that you are to arrest, are on the attached lists. 

You will also arrest all active members where found. 

Particular efforts should be made to apprehend all the officers, 
irrespective of where they may be, and with respect to such 
officers, their residence should be searched and in every instance 
all literature, membership cards, records and correspondence are 
to be taken. 

When a citizen is arrested as a communist, he must be 
present with the officers searching his home at the time of the 
search. 

Meeting rooms should be thoroughly searched. 

Locate and obtain the charter. All records, if not found in the 
meeting rooms, will probably be found in the home of the record- 
ing secretary or financial secretary, but in every instance, if 
possible, records should be found and taken. 

All literature, books, papers, pictures on the walls of the 
meeting places, should be gathered together and tagged with tags 
which will be supplied you, with the name and address of the 
person by whom obtained and where obtained. 

In searching meeting places, a thorough search should be 
made and the walls sounded. 

It is an order of the Government that violence to those ap- 
prehended should be scrupulously avoided. 

Immediately upon the apprehension of the alien, or citizen, 
search him thoroughly. If found in groups in a meeting room, 
they should be lined up against the wall and searched. Particular 
efforts should be made to obtain membership cards on the persons 
who are taken. 

Make an absolute search of the individual. No valuables, 
such as jewelry and monies, to be taken away from those arrested. 

After a search has been made of the person arrested you 



THE DEPORTATIONS 245 

will take all the evidence you have obtained from his person 
and place it in an envelope, which will be furnished you, plac- 
ing the name, address, contents of the envelope, by whom taken 
and where on the outside of the envelope and deliver to me with 
the alien. 

Everybody will remain on duty until relieved, without excep- 
tion. 

Flashlights, string, tags and envelopes should be carried, 
as per instructions. 

In searching rooms of an alien pay particular attention to 
everything in the room and make a thorough search thereof. 

You are also warned to take notice " that no violence is 
to be used." 

You will communicate with me by telephone from your several 
districts, the number of the telephone herewith given. 

Attached you will find a list of those to be apprehended in 
your district and you will also apprehend all those found arrested 
with these names at the time of the arrest, whom you find to be 
active members of the Communist party. 

You are also instructed to use reasonable care and good 
judgment. 

It is too early to write an account of the methods in 
which Mr. Palmer's agents carried out his Instructions, but 
I give the following authenticated facts. 

First, aliens and citizens found in a Communist hall on 
the night of raids, whether they were members of the organi- 
zation or not, were seized without any warrant whatever. In 
New England alone a hundred such persons were imprisoned 
for several days while the officials telegraphed for warrants to 
cover them, and hundreds more were not released for many 
hours. The Attorney General testifies on the nation-wide 
situation : 

Where the aliens were assembled at their meeting places and an 
actual meeting of the Communist Party was in progress the 
agents of the Department of Justice did take into custody all 
aliens attending that meeting. It is quite likely that warrants had 
not been obtained for all such persons, but it is sufficient, it 
seems to me, that when an alien is apprehended in the commission 
of the unlawful act that the action of the government officer 
taking him into custody is warranted. Certainly it could be 



246 FREEDOM OF SPEECH 

claimed that if the government officers had visited a meeting place 
and had permitted aliens found there for whom warrants had not 
been previously obtained to depart, that they had been derelict 
in their duty. 

The Attorney General also states that when persons ap- 
plied at the Hartford jail to see their friends who had been 
arrested at a Communist meeting, the visitors were properly 
arrested and locked up in the j ail ; for their coming to inquire 
was prima facie evidence of affiliation with the Communist 
Party."° 

Mr, Palmer's contention is that his agents faced the same 
situation as a policeman who witnesses a robbery. If he goes 
to the station house for a warrant the offender will vanish. 
His agents " did the safe thing " in arresting every alien 
apparently a Communist. This analogy is clearly unsound. 
For many crimes a warrant is necessary to arrest, and a 
deportable alien is not a criminal at all. Neither he nor a 
citizen can be deprived of his liberty upon considerations of 
expediency which are not the law of the land. Congress 
makes that law, and has explicitly required that the alien 
shall be taken into custody " upon the warrant of the Secre- 
tary of Labor." 

Secondly, the prisoners' property was overhauled and 
seized without search-warrants. The Chief of the Bureau 
of Investigation did direct his subordinates to apply to 
the local authorities for warrants " if you find it is absolutely 
necessary " ; and the Attorney General states, " In every 
instance where practicable search-warrants were procured 
from either city authorities or the United States com- 
missioner." He points to no law authorizing such warrants 
for papers, and none existed except possibly in states where 
Communists fall within anti-anarchy acts. Of course, war- 
rants for the seizure of concealed weapons give no right to 
seize papers. No proof has been given by the government in 
the Colyer case or elsewhere that search-warrants were ob- 

20 Palmer Deportations Testimony, 69, 76, 115. 



THE DEPORTATIONS 247 

tained in these raids. Mr. Palmer also says, " In no instance 
can it be shown that any person or place was searched over 
the objection of the individual." Naturally an ignorant alien 
confronted by a posse of detectives at night would hesitate 
to object to anything. Moreover, Mr. Palmer's statement 
that consent was a prerequisite to search is contradicted 
by the peremptory language of the Instructions and the 
testimony of his agents. Except in the case of educated 
English-speaking aliens like the Colyers, there is no evi- 
dence that the agents paused before ransacking halls and 
houses for documentary evidence connected with Com- 
munism. 

The justification urged is that this valuable evidence of 
membership would have been destroyed if not seized. Of 
course, no government has ever made an illegal search unless 
it expected to find something useful. If searches in depor- 
tation proceedings, with or without warrant, are necessary, 
they must be authorized by Congress and not by the Attorney 
General. 

Thirdly, the hearings by the immigration inspectors were 
often unfair. This was in large measure due, not to the 
fault of the inspectors, but to the unprecedented pressure 
of work and the absence of adequate protection for the rights 
of the alien. For nearly a year before the raids aliens had 
been entitled to counsel throughout the deportation hear- 
ings. The old procedure described in this chapter, which 
deprived them of counsel during the important preliminary 
hearings, while not unconstitutional, was considered so harsh 
by Secretary Wilson that he abolished it. On December 
29, 1919, just four days before the raids and during the 
Secretary's illness, the old harsh rule was revived. The 
Attorney General does not deny that this change was made 
through the efforts of the Department of Justice, and defends 
it on the ground that the examination of an alien, when 
under the advice of counsel, " got us nowhere." The fact 
remains that the Secretary of Labor had thought counsel 
desirable, and it was for him and not the Attorney General 



248 FREEDOM OF SPEECH 

to fix the Immigration Rules. As soon as Mr. Wilson and 
Mr. Abercrombie (who had inadvertently approved the 
change without appreciating its effect) realized what was 
happening, they restored the right to counsel, but this was 
not until January 27, after most of the examinations were 
completed. Meanwhile, until the hearings were practically 
closed, the inspectors heard the evidence without the help of 
counsel for the defense, and on the other hand, for the 
first time in the experience of immigration officials (at least 
in New England), an agent of the Department of Justice was 
present through every hearing. The alien stood alone before 
an administrative official, confronted by a member of the 
force of detectives who had sworn out the warrant against 
him and accomplished his arrest. Thus the government after 
issuing warrants for the arrest of 3,000 persons suddenly 
repealed a rule so as to affect those specific persons and de- 
prive them of rights which were guaranteed to them, not 
indeed by the Constitution, but by the existing law of the 
land. 

The value of the evidence obtained in this way was also 
materially affected by the treatment which the aliens under- 
went before and during their trials. The police dragged 
many men out of their homes in the dead of night. The 
aliens, none of them under any criminal charge and many of 
them held without warrants, were taken on trains and 
through the streets in handcuffs and chains. ^^ The prisoners 
were herded in vastly overcrowded quarters without sufficient 
clothing and food. For instance, the Mayor of Detroit 
described as " intolerable in a civilized city " conditions in 
the police " bull pen," a room 24 by 30 feet, where over a 
hundred men were kept for a week. Bail was often fixed at 
very high amounts; for instance, $10,000, although $500 
is the normal sum specified in the Immigration Rules. The 
men arrested were separated for days from their wives and 
children, who were left without support by the government. 

21 Palmer Deportations Testimony, 115. On Detroit, Barkley, infra, 
note 27. On Boston, Colyer opinion. 



THE DEPORTATIONS 249 

Instead, they were, Mr. Palmer assures us/^ " looked after 
by the most prominent charitable organization of their own 
creed in their locality. It is no part of the Attorney Gen- 
eral's duty to look after the families of the violators of our 
laws." The Supreme Court has declared repeatedly that 
aliens held for expulsion are not criminals.^^ This apology 
recalls the British General Dyer, the hero of Amritsar, 
who found shooting into a crowd a still more satisfactory 
way to get rid of sedition, and remarked that picking up 
the wounded was no affair of his — that was the business 
of the hospitals. 

The men deported on the " Buford " were torn from their 
families, who still remain in America. 

The public approval of these raids rests on a belief that 
all the thousands of men arrested were dangerous foreigners 
who advocated violence. Yet the daily press shows the 
eventual release for want of evidence of over a third of those 
seized. And a cursory glance at Mr. Palmer's Instructions 
shows that the character of an individual had absolutely 
nothing whatever to do with his arrest. The most harm- 
less person was to be seized if suspected of membership in 
the specified political parties. And although there was no 
law authorizing the arrest of citizens, these instructions 
direct that all Communists shall be seized, expressly includ- 
ing citizens. Elsewhere it is ordered that if citizens are 
arrested " through error," they shall be referred to the local 
authorities. Thus United States officials would arrest Ameri- 
can citizens for prosecution under the harsh state anti- 
anarchy acts. 

That the President of the United States can have au- 
thorized these measures seems impossible. It is astonishing 
that the Attorney General and the Acting Secretary of Labor 
should have carried through the greatest executive restriction 
of personal liberty in the history of this country during the 
President's illness. Even so the British Cabinet took ad- 

22 See his circular letter in 110 Nation 190 (February 14, 1920). 
28 £?.^,, Fong Yue Ting v. U. S., 149 U. S. 730 (1893). 



250 FREEDOM OF SPEECH 

vantage of the illness of their head, Lord Chatham, to make 
one of the worst onslaughts on freedom in modern England, 
the expulsion of Wilkes from the House of Commons in 
1768. Macaulay's Second Essay on Chatham gives the 
facts. 

His colleagues for a time continued to entertain the expectation 
that his health would soon be restored, and that he would emerge 
from his retirement. But month followed month, and still he 
remained in mysterious seclusion. . . . They at length ceased 
to hope or to fear anything from him ; and, though he was still 
nominally Prime Minister, took without scruple steps which they 
knew to be diametrically opposed to all his opinions and feelings. 

The sequel to the raids made it plain that hardly a 
single alien then arrested by the Department of Justice would 
be deported. In the absence of the President, a sharp con- 
flict between Mr. Palmer and the Department of Labor soon 
developed. Secretary Wilson released all the aliens impris- 
oned as members of the Communist Labor Party, holding that 
organization not to be within the deportation statute. Many 
of those arrested as members of the Communist Party were 
released by Assistant Secretary Post because their member- 
ship was not proved, and Judge Anderson in the Colyer case 
decided after an exhaustive survey of the New England raids 
that (1) many of the aliens who were ordered deported must 
be discharged for want of a fair trial; (2) even those who 
had a fair trial must be discharged because the Communist 
Party does not advocate " force and violence." If his de- 
cision is affirmed by the Supreme Court, nobody can be de- 
ported merely because of membership in either party. Con- 
sequently every alien seized in the raids must be released 
except the few who personally advocated the overthrow of 
the government by violence. 

Meanwhile, when Mr. Abercrombie went away, Mr. Post 
had taken charge of deportation matters. He soon became 
convinced that many of the recommendations of the immigra- 
tion inspectors and Mr. Caminetti for the deportation of 



THE DEPORTATIONS 251 

aliens were not in accordance with the evidence obtained at 
the hearings, and therefore canceled the warrants of arrest 
in these cases. This action aroused the indignation of Mr. 
Palmer and several members of the Immigration Committee 
of the House of Representatives. A House Resolution look- 
ing toward impeachment was referred to the Rules Committee, 
which heard the testimony of both Mr. Post and Mr. Palmer, 
but took no action before Congress adjourned. 

Mr. Post pointed out that the power to determine whether 
an alien should be deported was vested by law in the Secretary 
of Labor and his deputies, and not in the Commissioner Gen- 
eral of Immigration. The belief that the aliens discharged 
were dangerous revolutionists was derived from Mr. 
Caminetti's summaries, which were merely advisory, and 
not from the actual records of the hearings, which were 
often very different. It was Mr. Post's duty to decide each 
case upon the evidence and he had done so. When there was 
doubt as to the alien's guilt, the humanity of the situation 
might properly enter into his decision. Although deportation 
proceedings are not criminal in nature, he had drawn from 
the criminal law those principles which recognize the rights 
of the individual and especially his right to a fair decision 
whether or not he is guilty. The issue is, not whether those 
aliens who violate the law shall be deported, for he is de- 
porting them, but whether those who have not violated the law 
shall be deported. 

Mr. Palmer's position is this. While he has not " the 
slightest fear that any revolutionary movement can succeed 
in this country, even to the extent of seriously menacing our 
institutions," there was in 191:9 a great deal of revolutionary 
agitation which led to several attacks on federal officials and 
other violence, and might easily have led to more. The best 
way to keep order was to attack the spreaders of agitation 
by means of the deportation statute. The raids caused a 
marked cessation of revolutionary activities, and the two 
organizations affected were completely broken by the De- 
partment of Justice. Now this same agitation has taken a 



252 FREEDOM OF SPEECH 

new lease of life because of the decisions of Secretary Wilson 
and Mr. Post, which in Mr. Palmer's opinion are " neither 
based upon fact nor upon law." 

Upon this position, which I have tried to state with 
absolute fairness, three comments may be made. First, it 
raises the fundamental issue discussed in the preceding chap- 
ter, how far violent acts can wisely be prevented by the sup- 
pression of violent talk. Secondly, the particular method of 
suppression used by the Attorney General was placed by law 
under the control of another Department, but the facts of 
the raids leave no doubt that the deportation machinery dur- 
ing the arrests and the hearings was very substantially 
directed and operated by the Department of Justice. If 
the Department of Labor has not properly administered the 
law, the duty to " care that the laws be faithfully executed " 
is vested, not in the Attorney General, but in the President. 
Finally, although it is undoubtedly true that the laws re- 
quiring warrants for arrest, forbidding searches, and allowing 
counsel make deportation more difficult, even in the case of 
dangerous revolutionists, every rule in the interest of personal 
liberty necessarily diminishes the efficiency of government. 
Mr. Palmer adopted the attitude of the men he denounced. 
Because the law hindered the result he wished to accomplish 
and thought desirable, he disregarded the law. 

IV. The Arrest of American Citizens for Deportation 

The American people ought to be startled out of their 
complacent acquiescence in these raids by the confinement 
of hundreds of their fellow-citizens in jails, without the 
slightest charge of crime or possibility of such charge under 
any law of the United States. The government actually 
contends that it has the right to issue so-called alien war- 
rants, which state no evidence or facts whatever beyond a 
perfunctory repetition of clauses of the Deportation Act, 
and yet are the only substitute for an indictment in these 
proceedings, against any individuals, whether aliens or nat- 



THE DEPORTATIONS 253 

uralized citizens or native-born citizens, arresting them when- 
ever and wherever found, and holding them in custod}' until 
the question of citizenship is decided by the immigration au- 
thorities. It contends that a court has no jurisdiction to 
release an American citizen who has never been out of his 
native country from Deer Island or Ellis Island, or any 
other deportation jail, until the immigration official and 
the Secretary of Labor on appeal have denied his citizen- 
ship. Experience in the Chinese cases shows that these pro- 
ceedings frequently last for many months. " It follows 
that on the theory now urged the right of native-born citi- 
zens to liberty, perhaps for months, lies at the mercy of 
the immigration authorities," and that even after the order of 
deportation is finally issued against the citizen, he cannot 
obtain the right from a court to remain in this country 
unless the proceedings were manifestly unfair or otherwise 
illegal.^* 

The case of Peter Frank, an American citizen of Swamp- 
scott, Massachusetts, is typical. The warrant of arrest, 
which he never saw, began, " Whereas from evidence sub- 
mitted to me, it appears that the alien, Peter Frank, who 
landed at an unknown port on or about the 1st day of Jan- 
uary, 1919," and went on to charge membership in the 
stereotyped words of the statute in six kinds of violent or- 
ganizations, without naming a single one or describing it 
concretely. All the Boston warrants were in just this form. 
It was impossible for him to tell from it with what he was 
really charged. Moreover, no address or other identifica- 
tion of Frank was given, so that there was nothing to show 
that another man of the same name in another city was not 
intended. In his petition for habeas corpus, which was ver- 
ified by the evidence, Frank states that he was born in Ohio 
and was always a citizen ; that four days previously immi- 
gration officers broke into his house at one o'clock in the 
morning, arrested him, searched his house and carried off 

24 Peter Frank v. Henry J. SkefBngton, Commissioner, unreported 
opinion of G. W. Anderson, J., (D. Mass., January 27, 1920). 



254. FREEDOM OF SPEECH 

papers, confined him in the Lynn police station and on 
Deer Island, refused to allow friends or counsel to visit him, 
and ejected from the immigration office the man who started 
judicial proceedings in his behalf. Nevertheless, Commis- 
sioner Skeffington still contended that Frank was an alien, 
and that the burden of proof was on him to establish citizen- 
ship. The only evidence which was offered to justify his 
confinement was a questionnaire, on which Frank had an- 
swered that he was born in Cincinnati and was not a mem- 
ber of either the Communist or Socialist party or any other 
organization, but the Shoe Workers' Union. At the end of 
this paper the government had stencilled, " I, the under- 
signed, not a citizen of the United States, on oath depose, 
etc.," and Frank had hastily signed without crossing out 
the " not." On this flimsy fact the immigration officials 
kept him five days in jail until against their will he was dis- 
charged by Judge George W. Anderson. 

The Departments of Justice and Labor were baffled in 
this case, where there was absolutely no evidence that the 
prisoner was an alien, but they have not abandoned their 
main contention that the Secretary of Labor has absolute 
power, where citizenship turns upon a disputed fact like 
marriage, parentage, or place of birth, to confine a man who 
really is a citizen for months and then order him deported 
on a finding that he is not a citizen. And they are right 
that Congress has actually conferred this power, and that 
it makes no difference under the statute if the Secretary 
of Labor makes a mistake and classifies a man as an alien 
who is actually a citizen, for " the decision of the Secre- 
tary of Labor shall be final." The citizen is forbidden by 
Congress to appeal to the courts to correct the mistake of 
fact and prevent his banishment into places beyond the seas. 
It is, of course, possible that such a construction of this 
sentence would be held by the Supreme Court to conflict 
with the " due process " clause of the Constitution. It 
would seem that since the Constitution forbids an adminis- 
trative official to deport any one but an alien without judicial 



THE DEPORTATIONS 255 

proceedings, the Secretary is simply hauling himself up by 
his bootstraps when he decides that a citizen is within his 
jurisdiction and deportable. Nevertheless, the Supreme 
Court has already allowed him to make almost the same 
sort of decision under similar statutory language in United 
States V. Ju Toy.^^ That case permitted the Secretary to 
deport a Mongolian on a finding of fact that he was born 
in China, regardless of the decision of a court on habeas 
corpus that he was a native-born American citizen return- 
ing from a trip to China. On citizenship as on other ques- 
tions, the Secretary can be reversed only if there is error 
of law or an absolute lack of evidence, or if the person to 
be deported does not receive a fair hearing.^^ It may be 
that the Ju Toy case will be limited not to apply to deporta- 
tion after entry, but this cannot be predicted with any con- 
fidence. Enough has been said to indicate the possibility, 
under the present statutory and administrative machinery 
of deportation, of prolonged vexations for American citi- 
zens and even permanent exile. 

It is all very well to say that only Communist citizens 
run this risk anyway, and that they and Chinese citizens 
have " no rights that a white man is bound to respect." 
The Frank case shows that the government officials were 
ready enough to confine a citizen who is not a Communist, 
and he was only one out of many in the recent raids.^^ More- 
over, there is nothing in the Deportation Act of 1918 to 
limit the Secretary to Communists. As I shall show shortly, 
he may begin to break up other organizations by wholesale 
deportation of their members, both aliens and citizens whose 
citizenship is officially denied. Some native-born members 
of the American Federation of Labor may find a future Sec- 

25 198 U. S. 253 (1905). 

2^ E.g., Chin Yow v. U. S., 208 U. S. 8 (1908). The Ju Toy case was 
held not to apply to deportations, Moy Suey v. U. S., 147 Fed, 697 
(C. C. A., 1906); U. S. V. Low Hong, 261 Fed. 73 (C. C. A., 1919). 

27 F. R. Barkley, "Jailing Radicals in Detroit," 110 Nation 136 
(January 31, 1920); Palmer Deportations Testimony, 109, 111; Colyer 
opinion. 



256 FREEDOM OF SPEECH 

retary of Labor ruling (1) that their association advocates 
the overthrow of the government by force and violence and 
(2) that they are aliens. So long as there is any evidence, 
however much outweighed, to support these two findings, the 
statute is plain, and allows them no remedy. 

V. A Review of the Actual Cases of Radicals Held 
for Deportation 

The public is therefore in error in assuming that only 
foreigners have been seized for deportation. It is also wrong 
in thinking that the aliens who have been arrested are aU 
dangerous characters. Some of those expelled to Europe 
have undoubtedly been turbulent persons like Emma Gold- 
man, but not all the persons who are held to come within 
the Deportation Act of 1918 are of the same sort. In order 
to make it plain just what kind of men the government wants 
to deport, I shall review the actual decisions relating to 
three types of radical aliens, Communists, Industrial Work- 
ers of the World, and anarchists. 

(1) Communists — Guilt by Association and 
Government Spies 

The Communist Labor Party and the Communist Party, 
which were the chief objective of the recent raids, seceded 
from the Socialist Party in September, 1919, taking with 
them several state Socialist organizations, and a very large 
number of left-wing Socialists.^^ Mr. Gordon Watkins, of 
the University of Illinois, reports the following estimates of 
the size of the three parties: Socialist Party after the seces- 
sion, 39,000; Communist Labor Party, 10,000 to 30,000; 
Communist Party, 30,000 to 60,000, of whom 25,000 belong 
to foreign-language federations which are predominantly 
Russian in their constituency. The Secretary of Labor has 
ruled that all the aliens in the Communist Party are ipso 

28 Gordon S. Watkins, "The Present Status of Socialism in the 
United States," 124 Atlantic Monthly 821 (December, 1919). 



THE DEPORTATIONS 267 

facto liable to deportation under the Act of 1918, as mem- 
bers of or affiliated with an " organization that entertains 
a belief in, teaches or advocates the overthrow by force or 
violence of the government of the United States.^^ The 
Attorney General's Instructions evidently take the same view 
of the Communist Labor Party. Consequently, a card from 
either party found on any alien furnished the immigration 
officials with what they called " a perfect case." Neverthe- 
less, Secretary Wilson took a different view of the Com- 
munist Labor Party in the Carl Miller case, and Mr. Post 
in the Truss case ruled that a card was not conclusive proof 
of membership. Judge Anderson in the Colyer case went 
still farther, and held that the Communist Party was not an 
organization within the Act of 1918. 

These various decisions raise two questions: (a) When 
does an organization advocate force and violence? (6) 
if it does so, can all its members be justly subjected to 
painful consequences.'* 

(fl) The difficulties of the first question have already 
been pointed out in the preceding chapter, and the Pro- 
gram of the Communist Party affords a practical illustra- 
tion thereof. Although this Program, which is reprinted 
in the American Labor Year-Booh for 1919-20,^° plainly 
intends that the proletariat shall " conquer and destroy the 
bourgeois parliamentary state " and substitute a very dif- 
ferent political and economic system, there is not a word 
which expressly says that the conquest is to be by force and 
violence. Mr. Wilson, admitting that such a violent pur- 
pose is essential to bring the organization within the scope 
of the Act, finds it inferentially in various passages, which 
I give below with the omission of two that parallel the first. 
In the first place he relies on such statements as, 

29 7n re Engelbert Preis, January 24, 1920, House Judiciary Hearings, 
17. All the important administrative decisions are reprinted in House 
Immigration Hearings. 

30 Edited by Alexander Trachtenberg, published by Rand School of 
Social Science, N. Y., pp. 416-419. Also in House Judiciary Hearings, 
78-80, which contains many other important documents relating to the 
two Communist parties. 



258 FREEDOM OF SPEECH 

" Participation in parliamentary campaigns, which in the 
general struggle of the proletariat is of secondary impor- 
tance, is for the purpose of revolutionary propaganda only." 
The context, which he does not quote, qualifies the meaning 
of " revolutionary " : 

Parliamentary representatives of the Communist Party shall 
not introduce or support reform measures. Parliaments and 
political democracy shall be utilized to assist in organizing the 
working class against capitalism and the state. Parliamentary 
representatives shall consistently expose the oppressive class 
character of the capitalist state, using the legislative forum to 
interpret and emphasize the class struggle ; they shall make clear 
how parliamentarism and parliamentary democracy deceive the 
workers; and they shall analyze the capitalist legislative pro- 
posals and reform palliatives as evasions of the issue and as of 
no fundamental significance to the working class. 

The vital issue is plainly to determine what is the primary 
method which is meant to supersede political processes. Is 
it violence or is there some other alternative.? The Pro- 
gram gives the answer, " The Communist Party shall make 
the great industrial struggle of the working class its major 
campaigns." Yet the Secretary decides that this primary 
method is violence, on the basis of the following extracts 
from the Party Manifesto: 

The conquest of the power of the state is accomplished by the 
mass power of the proletariat. Political mass strikes are a vital 
factor in developing this mass power, preparing the working class 
for the conquest of capitalism. The power of the proletariat 
lies fundamentally in its control of the industrial process. The 
mobilizing of this control against capitalism means the initial 
form of the revolutionary mass action that will conquer the power 
of the state. 

Mass action is industrial in its origin but it acquires political 
character as it develops fuller forms. Mass action, in the form 
of general political strikes and demonstrations, unites the energy 
and forces of the proletariat, brings proletarian mass pressure 
upon the bourgeois state. The more general and conscious mass 
action becomes, the more it antagonizes the bourgeois state, the 
more it becomes political mass action. Mass action is responsive 



THE DEPORTATIONS 259 

to life itself, the form of aggressive proletarian struggle under 
imperialism. Out of this struggle develops revolutionary mass 
action, the means for the proletarian conquest of power." 

And then, making this violent purpose still more clear in his 
eyes, he gives this passage from the Manifesto of the Com- 
munist International, vrhich the Communist Party is said to 
accept as a part of its policy : 

The revolutionary era compels the proletariat to make use of 
the means of battle which will concentrate its entire energies, 
namely, mass action, with its logical resultant, direct conflict 
with the governmental machinery in open combat. All other 
methods, such as revolutionary use of bourgeois parliamentarism, 
will be of only secondary significance. 

From these quotations and numerous other statements 
which he does not quote (and certainly nothing in the organic 
documents is more favorable to his view than the extracts re- 
printed by me) : 

" It is apparent," he says, " that the Communist party is not 
merely a political party seeking the control of affairs of state, 
but a revolutionary party seeking to conquer and destroy the 
state in open combat. And the only conclusion is that the Com- 
munist Party of America is an organization that believes in, 
teaches, and advocates the overthrow by force or violence of the 
government of the United States." 

The last sentence is a complete non sequitur. The pas- 
sages he quotes and the whole Program show that the combat 
is to be through the proletarian control over industry, 
which is to be used not merely to secure economic advantages 
but to put the government in such an uncomfortable posi- 
tion that it will give way to a new kind of government. He 
lays too much emphasis on the exact wording of the Inter- 
national Manifesto, for although applicants for membership 
in the Communist Party declare their adherence to the prin- 
ciples and tactics of the Communist International, they are 
not required to read its manifesto and so cannot be sup- 



260 FREEDOM OF SPEECH 

posed to approve every word. And even if they do, " direct 
conflict with the governmental machinery in open combat " 
means lawlessness but not necessarily violent lawlessness. A 
continuation of the recent coal strike after the injunction 
would have been just such a conflict without any violence 
at all. The jargon of Socialism has always been full of 
such militant phraseology, which does not imply anything 
more than political and economic effort. " Revolutionary 
class struggle," " mass power," " mass action," mean big 
strikes for political ends. Such strikes like any strike might 
lead to violence, but Secretary Wilson as a former labor 
leader can hardly hold that advocacy of a strike is per se 
advocacy of force and violence. Objectionable as the pur- 
poses of the Communist Party are to all who have faith in 
bur system of representative government and the possibility 
of progress through public opinion and the ballot, those pur- 
poses are not within the Deportation Act of 1918, for they 
are altogether compatible with the absence of force and vio- 
lence. The general strike may be more efi'ective against a 
government than an armed rebellion, and Congress can if it 
wants make advocacy of the general strike a ground for 
deportation, but it is not such a ground now. Secretary 
Wilson is wrong in assuming that non-political methods of 
overturning a government are necessarily criminal and 
violent methods. Francis Place, the tailor, overturned the 
government of England in 1832 and precipitated a revolu- 
tion which the vote of the electorate had failed to accom- 
plish, simply by posting placards urging the people to start 
a run on the banks. There is a middle method of political 
change between the ballot and the bomb, namely economic 
pressure, and that, however unwise or injurious in nature, 
is the method of the Communist Party. It advocates the 
overthrow of our government, but not by force or 
violence. 

Undoubtedly there are men in the Communist Party who 
would use force to get rid of their opponents. Every party 
has such men. Billy Sunday preaches, " If I had my way 



THE DEPORTATIONS 261 

with these ornery wild-eyed SociaHsts and I.W.W.'s, I would 
stand them up before a tiring squad and save space on our 
ships." Guy Empey tells his hearers to get rid of Bolshe- 
viks ; " the necessary implements can be obtained at any 
hardware store." The Republican Secretary of the State 
of Massachusetts would shoot Bolshevists and traitors 
every morning, at least in war time, and the next morning 
he would have a trial to see if they were guilty. But such 
men do not turn their party into a party of force and vio- 
lence. 

There is no sure test of what a party does advocate. The 
utterances of a leader may represent only his personal view 
and be rejected by his associates. Even platforms have 
never been taken very seriously in any party. The law has 
got itself into a bad mess by starting investigations into the 
opinions of associations, the vaguest kind of inquiry imag- 
inable. And certainly the evidence adduced by Secretary 
Wilson, even if it can be construed as an encouragement of 
violence, is much more capable of a peaceful interpretation. 
Until he is sure that the violent construction is actually put 
upon the words by the members of the party, he is not justi- 
fied in adopting an interpretation which makes possible the 
expulsion from their homes of thousands of workingmen in 
the United States. 

The Communist Labor Party is also outside the scope of 
the Deportation Act. Its Program has the same talk about 
" the conquest of political power by the workers," " the class 
struggle," " action of the masses." It favors " the estab- 
lishment of the Dictatorship of the Proletariat " by making 
*' the great industrial battle its major campaigns, to show 
the value of the strike as a political weapon." ^^ It is a 
revolutionary working-class party but there is nothing in its 
Platform or Program which advocates force or violence. As 
for the ruling of Assistant Attorney General Garvan that 

31 Ibid., pp. 414-416. See Secretary Wilson's opinion in favor of 
Communist Labor Party, Post Deportations Testimony, 152. Contrast 
convictions of members under anti-anarchy acts of states. 



262 FREEDOM OF SPEECH 

the two Communist parties violate the Espionage Act be- 
cause they are " pledged to fight any suggestion of military 
action by America against the Soviet Russians," ^^ the 
widest construction of that convenient statute has never 
before extended it to prohibit opposition to war before war 
is declared. 

(h) Even if Secretary Wilson is right in his ruling that 
some of the tenets of the Communist Party advocate force 
and violence, it does not necessarily follow that all its mem- 
bers are supporters of violence. It is true that persons join- 
ing the Communist Party sign a statement of allegiance to 
its platform, but this ought not to be taken as conclusive 
that they favor violence, especially as there is no express 
mention of violence in that document and the party had not 
then been declared illegal. The facts show that many per- 
sons are affiliated with this party for various innocent rea- 
sons. Some believe in peaceful industrial action as the only 
cure for social ills, some join because their friends do, others 
without being members of the party frequent its head- 
quarters (and so may be held to be affiliated) to take lessons 
in physical geography or because the Communist restaurant 
has better meals at cheap prices than any other place. In 
Massachusetts, many persons are members of the Communist 
Party because they belonged to the local state Socialist 
organization when it seceded last September and turned Com- 
munist, and their year's Socialist membership had not yet 
expired. Many such men fall within Secretary Wilson's rul- 
ing just as much as the real revolutionists, very few of whom 
seem to have been caught. When hundreds were lined up 
together after the recent raids, the Times reported, " They 
were a tame, unterroristic looking crowd, and their appear- 
ance bore out the statements of operatives that not a man 
had tried to put up a fight." ^^ 

The idea that guilt is not necessarily personal, but can 
result from mere association is absolutely abhorrent to every 

32 New York Times, January 4, 1920. 

33 Quoted in 21 Neio Republic 232 (January 21, 1920). 



THE DEPORTATIONS 263 

American tradition or conception of criminal justice.'* 
Therein it differs from the law of Germany. In 1878, after 
two attempts had been made upon the Emperor's life, Bis- 
marck secured a law " against the generally dangerous 
efforts of Social Democracy," a party which then advocated 
the doctrine that the existing capitalistic society must be 
overthrown by forcible revolution. This law made men 
offenders, not for anything they individually did or said, but 
simply by reason of their membership in an association 
which aimed at the overthrow of the existing order of gov- 
ernment or society. The party thrived and prospered under 
this law as never before. When it was repealed, the party 
became conservative.^^ Similar legislative measures were 
adopted in England during the hysteria of the French Revo- 
lution against associations which advocated universal man- 
hood suffrage, although as May says, the few men who were 
really guilty of sedition and treason would have met with no 
sympathy among a loyal people. A statute was passed sup- 
pressing by name the " Societies of United Englishmen, 
United Scotchmen, United Britons, United Irishmen, and 
The London Corresponding Society " and enacting that any 
person who thereafter became or continued a member of any 
such society should be deemed guilty of an unlawful com- 
bination and confederacy and upon conviction might be 
transported for seven years.^^ Other societies were broken 
up by a general statute punishing any one concerned in 
taking oaths to engage in any " seditious purpose." This 
statute was used nearly forty years later to punish men for 
membership in a labor union.^^ 

May's description of England in 1792 applies to this coun- 
try in 1920, and should stand as a warning.^^ 

34 Alfred Bettman in Hearings before the Committee on Rules, 66th 
Cong., 2d Sess., on H. Res. 438, Wash., 1920, pp. 125-128. 

as Ernst Freund, The Police Poioer, 613 note; 2 Stephen's History 
of the Criminal Laio 395. Alfred Bettman, supra. 

36 39 Geo. Ill, c. 79 (1799). 

3T37 Geo. Ill, c. 123 (1797); 20 Columbia L. Rev. 234 note (Feb- 
ruary, 1920). 

38 2 May's Constitutional History of England, 32, 33. Aliens are 
specifically discussed on 166 flf. 



264 FREEDOM OF SPEECH 

In ordinary times the insignificance of these societies would 
have caused contempt, rather than alarm ; but as clubs and dema- 
gogues originally not very formidable had obtained a terrible 
ascendancy in France, they aroused apprehensions out of pro- 
portion to their real danger. . . . The Government gave too ready 
a credence to the reports of their agents ; and invested the doings 
of a small knot of democrats, chiefly workingmen, with the 
dignity of a widespread conspiracy to overturn the constitution. 
Ruling over a free State, they learned to treat the people in 
the spirit of tyrants. Instead of relying upon the sober judgment 
of the country, they appealed to its fears, and in repressing 
seditious practices they were prepared to sacrifice liberty of 
opinion. Their policy, dictated by the circumstances of a time of 
strange and untried danger, was approved by the prevailing 
sentiment of their contemporaries, but has not been justified in 
an age of greater freedom by the maturer judgment of posterity. 

Ireland is another country where the policy of guilt by 
association has been a favorite with the government. In 1825 
the Catholic Association, which advocated the admission of 
Roman Catholics to full civil and political rights, was sup- 
pressed by an Act of Parliament declaring unlawful every 
society acting for more than fourteen days for the purpose 
of procuring the redress of grievances in church or state, 
and making membership thereafter a misdemeanor punishable 
by fine and imprisonment in the discretion of the court. The 
Catholic Association was dissolved, and its former members 
started a new society every fourteen days to do exactly the 
same things. When the statute expired after three years, 
the Catholic Association immediately revived. In 1829 it 
was suppressed again by name, but it had accomplished its 
object of securing Catholic Emancipation.^^ In 1881 the 
English Cabinet repeated this policy with what Morley, who 
ought to know, calls " about the most egregious failure in 
the whole history of exceptional law." Parnell's Land 
League was suppressed by proclamation under authority of 
a Coercion Act, and hundreds of suspects, including Parnell 
himself, were arrested and imprisoned, " but the only effect 
of these measures was largely to increase agrarian crime in 
39 6 Geo. IV, c. 4 (1825) ; 10 Geo. IV, c. 1 (1829) ; 2 May, ibid., 88-98. 



THE DEPORTATIONS 265 

Ireland and to strengthen the malign influence of the insti- 
gators to violence who had to some real extent been held in 
check by the imprisoned leaders." *° 

It is this policy of guilt by association which our gov- 
ernment now proposes to imitate. The American policy has 
always been different. A man has not been visited with legal 
penalties because he had bad companions. He has not been 
imprisoned except for acts which he himself did or injurious 
words which he himself uttered, and he has not been expelled 
unless after investigation of his individual qualities he was 
found undesirable. The deportation clauses against radical 
organizations were practically a dead letter until these raids. 
Even with treason, the most dangerous crime of all, he is not 
guilty just because he associates with treasonable persons. 
Chief Justice Marshall held in the case of Aaron Burr that 
he must himself commit overt acts of treason.'*^ Unless a 
man is a member of a conspiracy he is not responsible for 
the acts of others unless they are authorized by him. And 
no one contends that the two Communist parties are con- 
spiracies. The Supreme Court has just handed down a deci- 
sion squarely in point.^^ It held unanimously that the presi- 
dent and treasurer of the Philadelphia Tagehlatt could not 
lawfully be convicted for items in its columns violating the 
Espionage Act, which were put in by their associates on the 
newspaper, since they were in no way responsible for the pub^ 
lications complained of. The same principle applies to the 
rank and file of the Communist parties. 

The deportation statutes introduce the European prin- 
ciple that a man is known by the company he keeps and that 
guilt is not personal. This is an unprecedented and ob- 
noxious feature of the various syndicalist statutes mentioned 
in the last chapter, and it is equally obnoxious as a ground 
for expulsion, which, as I have shown, is in all its practical 

40 44 Vic, c, 4 (1881); 3 May, ibid., 160; Morley's Becolloctions, II, 
818. 

41 Beveridge's Marshall, III, c. 9. 

*2Schaefer v. U. S., 261 U. S. 468; see p. 94, suTpra. 



266 FREEDOM OF SPEECH 

effects equivalent to punishment of the severest kind. These 
membership clauses in the deportation statutes have never 
been construed by the Supreme Court, but even if it be held 
that the power of Congress over aliens is so extensive that 
expulsion for mere membership in an association without 
themselves expressing or even holding prohibited opinions is 
" due process of law " and a permissible abridgment of free- 
dom of speech, nevertheless the clauses are drastic and dan- 
gerous. 

It would be like some of the obnoxious statutes just men- 
tioned for the Secretary of Labor to rule that the Com- 
munist Party is an outlawed organization, and that all aliens 
who thereafter join it or neglect to withdraw are liable to 
deportation. It is even harsher to expel them because they 
were members before the ruling. How many can fairly be 
supposed to have known until then that that party was within 
the statute.'' Its violent character was not so obvious that 
they can fairly be considered to have assumed the risk of 
such a severe penalty. To impose banishment on them with- 
out warning recalls Bentham's complaint that the criminal 
judges of his time gave laws to the poor just as a man makes 
laws for his dog. " When your dog does anything you want 
to break him of, you wait until he does it and then you beat 
him for it. That is the way you make laws for your dog," 
and that is the way we are making laws for our radical 
aliens. 

The proposition that men who are personally dangerous 
must be vigorously dealt with is in no way affected by what 
I have said about these membership clauses of the deporta- 
tion statute. Those clauses give administrative officials the 
right to expel men who are in themselves harmless, and if 
the free speech and due process clauses do not invalidate 
them, they are none the less unjust. Burke said in his 
Speech on the Conciliation of a certain rebellious people, 
when his opponents wanted a bill " with teeth in it," that you 
cannot draw an indictment against a whole nation. You 
cannot draw it against a whole party either. Those Repub- 



THE DEPORTATIONS 267 

llcans and Democrats who shout for the deportation or im- 
prisonment of the entire Communist Party because of certain 
clauses in its platform might recover their sense of humor 
long enough to ask themselves if they ever endorsed every 
plank in their respective party platforms. Even Congress- 
men, party leaders, and Presidents have been known to dis- 
regard some such principles. Let us deport men for the in- 
juries they do or, if we must, for what they say, but stop 
condemning them for the grandiose phrases of a party 
creed. 

People seem to think high-handed acts a matter of indif- 
ference, so long as the men who suffer are Communists, like 
the Spanish woman who did not object to watch- 
ing autos-da-fe because only heretics were burned. ^^ 
But if the Secretary of Labor has final power to decide 
whether any organization advocates force or violence, if 
this is an administrative question of fact like an alien's 
having tuberculosis, then there is no logical reason for 
him to stop with the Communist parties. As we shall see in 
the next chapter, a very energetic attempt has been made to 
put the Socialist Party in the same category. The Non- 
partisan League, the American Labor Party, the Committee 
of 48, have all been called forcible revolutionists. The West- 
ern Federation of Miners has been accused of violence. Nor 
is the American Federation of Labor exempt from such 
charges. The recent steel strike was frequently denounced 
as revolutionary, and there is no doubt that the Bridge and 
Structural Iron Workers have blown up many bridges and 
buildings.'** Suppose not only that the law punishes indi- 
vidual members of these organizations who commit or even 
talk violence, but that a future Secretary of Labor shares 
the opinions of those who believe that the organizations 
themselves advocate force and violence. Deportations will 
follow for the purpose of driving these organizations out of 
existence. 

43 Ernst Freund in 21 New Republic 266 (January 28, 1920). 

44 Hoxie, Trade-unionism in the United States, passim. 



268 FREEDOM OF SPEECH 

And even if the wording of the present constitutions of 
these various bodies makes such a possibility very remote, 
some future change of language may easily bring any of 
them within the scope of the statute. Here a very sinister 
opportunity is afforded to the enemies of any radical organi- 
zation, whether they be the Federal Government or a state 
government, unscrupulous employers or a detective agency 
proceeding on its own initiative, a conservative union or a 
rival political party. Spies can be sent into the councils 
of the organization in question, for the purpose of inducing 
the insertion of violent planks in its constitution. Once this 
is accomplished, all alien members of the organization are 
presented with the alternatives of immediate resignation or 
deportation ; to say nothing of the fact that citizen mem- 
bers may face prosecution under a state syndicalism statute 
or perhaps under a future federal sedition statute like sec- 
tion 10 of the Graham Bill. These clauses in deportation 
and syndicalist statutes making mere membership a basis 
for severe penalties render it so easy to destroy any organi- 
zation in the way I have suggested that the temptation may 
not be resisted in times of excitement. Indeed, it is believed 
by Judge Anderson that some of the extreme planks in the 
Communist Party Platform, to which Secretary Wilson 
points, may possibly have been inserted in this very manner. 

The very existence of spies, whether or not they would 
thus influence statements of radical principles, is one of the 
worst evils of sedition legislation, whether directed toward 
prosecution or deportation. Espionage goes with an Es- 
pionage Act. Informers have been the inseparable accom- 
paniment of government action against the expression of 
opinion since the delators of Tiberius.^^ The state cannot 
reach such crimes without them. It needs no great force of 
eavesdroppers to report murders and robberies. The overt 
act marks the offense, and if a detective is required at all it 
is either to chase the criminal, to ward off bomb-plots and 
assassinations, or to discover who is committing especially 

45 Merivale, The Romans under the Empire, c. 44. 



THE DEPORTATIONS 269 

ingenious thefts. But if political utterances are made 
criminal, secret police are indispensable to discover that the 
crime has been committed at all. That was why the original 
loose Anti-Anarchy Bill introduced in the Massachusetts 
legislature in 1919 was accompanied by a bill to establish 
a secret police.*® The Attorney General was empowered to 
" make inquiry into any matters concerning the public 
safety," and for that purpose to employ " officers, agents, 
or deputies," whose names were known only to him and the 
governor, and to have at his disposal a fund from which dis- 
bursements could be made without audit. When the Anti- 
Anarchy Bill was made less sweeping, the Secret Police Bill 
became unnecessary and was dropped. 

We do not need to go out of Anglo-Saxon countries to 
Russia for examples of this system in actual operation. The 
accounts of the historic English sedition trials are full of 
the employment of spies at the meetings of political societies. 
And the spy often passes over an almost imperceptible 
boundary into the agent provocateur, who instigates the 
utterances he reports, and then into the fabricator, who in- 
vents them. There was plenty of this in England, and the 
same kind of liar, Captain Zaneth of the North West 
Mounted Police, has just been exposed in Canada after con- 
victing one of the Winnipeg strike leaders on a charge of 
seditious conspiracy.*^ This dirty business is the price a 
government must pay for the suppression of political crime. 
Are we willing to pay that price.? 

" The freedom of a country," writes the historian already 
quoted, " may be measured by its immunity from this baleful 
agency." *^ We have never had it before in the United 
States, but there is disquieting evidence that this inevitable 
machinery of sedition-hunters is already at work. At the 
end of the instructions which W. J. Flynn, Director of the 

46 Mass. Senate Bill No. 184 (January, 1919). This did not become 
law. 

47 J. A. Stevenson, " A Set-back for Reaction in Canada," 110 Nation 
292 (March 6, 1920). 

48 2 May, ibid,, 160. 



270 FREEDOM OF SPEECH 

Bureau of Investigation in the Department of Justice, 
issued, on August 12, 1919, " to all special agents and 
employees," ordering an investigation of the promotion of 
sedition and revolution, which should be particularly directed 
to aliens with a view of obtaining deportation cases, we 
find this enigmatic passage : ^® 

Special agents will constantly keep in mind the necessity of 
preserving the cover of our confidential informants, and in no 
case shall they rely upon the testimony of such cover informants 
during deportation proceedings. 

Who these " cover informants " were is disclosed by the 
New York Times ^^ in its account of the raids on the Com- 
munists four months later: 

For months Department of Justice men, dropping all other 
work, had concentrated on the Reds. Agents quietly infiltrated 
into the radical ranks, slipped casually into centers of agitation, 
and went to work, sometimes as cooks in remote mining colonies, 
sometimes as miners, again as steel workers, and, where the op- 
portunity presented itself, as " agitators " of the wildest type. 
Although careful not to inspire, suggest, or aid the advancement 
of overt acts or propaganda, several of the agents, " under cover " 
men, managed to rise in the radical movement, and become, in 
at least one instance, the recognized leader of a district. 

The Attorney General and his subordinates testify that the 
Department of Justice employs men who are or have 
recently been spies in outlawed organizations. One special 
agent, though never an under-cover informant in the De- 
partment, was a spy for the Lusk Committee a short time 
before as recording secretary of the Buffalo Communist 
local. The letter of instructions about the raids from Chief 
Burke of the Bureau of Investigation to his Boston agent, 

49 Investigation Activities of the Department of Justice, 34. 

50 January 3, 1920. For additional evidence as to the activities of 
these informants, see the testimony of Captain Swinburne Hale in 
Hearings before the Committee on Rules, supra, note 84; Colyer opinion; 
Palmer Deportations Testimony, 48, 87 ff., 199; Report upon Illegal 
Practices. 



THE DEPORTATIONS 271 

December 27, 1919, whatever its precise meaning, shows that 
United States employees were active and influential members 
of both Communist parties: 

If possible, you should arrange with your under-cover in- 
formants to have meetings of the Communist Party and the Com- 
munist Labor Party held on the night set. . . . This, of 
course, would facilitate the making of the arrests. 

It is to be hoped that these men have been as " careful " as 
the Times reporter says, and that Mr. Palmer is right in 
denying his employment of agents provocateurs, but we 
would do well to recall one more warning from May : ^^ 

The relations between the Government and its informers are 
of extreme delicacy. Not to profit by timely information were 
a crime; but to retain in Government pay, and to reward spies 
and informers, who consort with conspirators as their sworn ac- 
complices, and encourage while they betray them in their crimes, 
is a practice for which no plea can be offered. No Government, 
indeed, can be supposed to have expressly instructed its spies 
to instigate the perpetration of crime ; but to be unsuspected, every 
spy must be zealous in the cause which he pretends to have 
espoused; and his zeal in a criminal enterprise is a direct en- 
couragement of crime. So odious is the character of a spy, that 
his ignominy is shared by his employers, against whom public 
feeling has never failed to pronounce itself, in proportion to the 
infamy of the agent, and the complicity of those whom he 
served. 

When the litigation growing out of the Communist raids 
is over, and we can count how many men out of the many 
thousands arrested are actually deported, and determine how 
many of those deported are really bad, then only will it be 
possible to say whether it was worth while instead of de- 
porting the conspicuously dangerous men to go through all 
this enormous expense, all this spying, arresting, and herd- 
ing, to save the country from men who in ordinary peace- 
time conditions were advocating a revolution at some distant 

51 2 May, ibid., 161-2. See Graham Wallas, Francis Place, N. Y., 
1919, 121. 



272 FREEDOM OF SPEECH 

and indefinite day through legislative and other propaganda 
and occasional future unspecified and improbable general 
strikes. 

(2) Industrial Workers of the World 

The Industrial Workers of the World have been classified 
differently from the two Communist parties. Both the De- 
partment of Justice and the Secretary of Labor have taken 
the position, contrary to some state decisions,^^ that the 
organization does not advocate the unlawful destruction of 
property. " Its constitution and by-laws have been adroitly 
drawn so as to avoid the possibility of construing it as teach- 
ing either anarchy or sabotage." Consequently, mere mem- 
bership is not a ground for deportation.^^ It is evident that 
local immigration inspectors do not all agree with this view 
of the organization, for Secretary Wilson has released some 
aliens who after being carried from Oregon to Ellis Island, 
declared they joined the I.W.W. without realizing its prin- 
ciples.^* The leaders, organizers, and distributers of litera- 
ture, at any rate, are getting deported, and this action has 
been sustained by United States courts in Washington and 
Oregon on the ground that there is some evidence to justify 
the administrative order of expulsion. ^° One judge has can- 
celled the naturalization of an I.W.W. organizer, who at 

52 state V. Moilen, 140 Minn. 122 (1918) ; and the injunction men- 
tioned on p. 193, supra; also State v. Lowery, 104 Wash. 520 (1918), 
which refused to admit in evidence the Report of the President's Media- 
tion Commission. 

53 Investigation Activities, etc., 33; letter of W. B. Wilson to John 
E. Milholland, 110 Nation 327 (March 13, 1920). 

54 New York Times, March 18, 1919. See adverse editorial, March 
19. Officials of the Department of Justice are reported, ibid., February 
11, as asserting that mere membership is enough, so that " it will be 
impossible for that organization to continue in existence." The Ellis 
Island I.W.W.'s would have been discharged by a judge if they had not 
been released. — Post Deportations Testimony, 207. 

55 Ea; parte Bernat and Dixon, 255 Fed. 429 (1918); Guiney v. 
Bonham, 261 Fed. 582 (C. C. A., 1919) ; and see administrative deci- 
sions in " The Anarchist Deportations," 21 New Republic 96 (Decem- 
ber 21, 1919); and Charles Recht, American Deportation and ExcVuf 
sion Laws. Cf. U. S. ex rel. Grau v. Uhl, 262 Fed. 532 (1919). 



THE DEPORTATIONS 273 

the time he became a citizen approved of sabotage and 
indorsed the preamble and constitution of the organization.^" 
The judge said that since the I.W.W. is " opposed to all 
forms of government, advocates lawlessness, and constructs 
its own morals, which are not in accord with those of well- 
ordered society," but are " adapted by design to the de- 
moralization and degradation thereof," its adherents must 
ipso facto be guilty of fraud in declaring that they are at- 
tached to the principles of the United States constitution. 
Therefore, they cannot become citizens, and if they do, the 
right can be taken away and deportation follows. The 
Districts Courts go further than Secretary Wilson, since they 
denounce the organization itself and regard all members of 
the I.W.W. who understand and approve its tenets as 
barred from citizenship and within the Deportation Act, 
whether or not they have personally advocated violence. 
There is, of course, no question that many alien officers and 
members have preached sabotage, and are deportable. 

It is unnecessary to repeat here what was said in the pre- 
ceding chapter about the wisdom of coercion against the 
propagandist activities of the I.W.W., as distinct from the 
commission of sabotage and other violence, which of course 
must be vigorously punished. I will only add that the De- 
partment of Labor should be sure that the organization 
against which it emploj^s this great power is fundamentally 
revolutionary and not at bottom a labor union. The use of 
deportation to break up unions, little as I sympathize with 
them, seems to me to be wholly wrong. It is said, for 
instance, that when the Chinese workers in New York chop 
suey restaurants organized a union and struck on New 
Year's Eve, 1918, the leaders were arrested for deporta- 
tion.^^ The facts of another case are given in the decision of 

66 U. S. V. Swelgin, 254 Fed. 884 (1918). 

^T American Labor Year-Book, 1919-20, p. 113. Ex parte Jackson, 
263 Fed. 110 (1920), Bourquin, J. The whole decision should be read. 
The attitude of the government toward labor unions outside the A. F. of 
L. is shown by the Attorney General's statement about the Amalgamated 
Clothing Workers, Palmer Deportations Testimony, 196, 197. 



274 FREEDOM OF SPEECH 

a United States judge, who discharged the alien held for 
deportation : 

From August, 19 18, to February, 1919, the Butte Union of the 
Industrial Workers of the World was dissatisfied with working 
places, conditions, and wages in the mining industry, and to 
remedy them was discussing ways and means, including strike 
if necessary. In consequence, its hall and orderly meetings were 
several times raided and mobbed by employers' agents, and fed- 
eral agents and soldiers duly officered, acting by federal authority 
and without warrant or process. The union members, men and 
women, many of them citizens, limited themselves to oral pro- 
tests, though in the circumstances the inalienable right and law 
of self-defense justified resistance to the last dread extremity. 
There was no disorder save that of the raiders. These, mainly 
uniformed and armed, overawed, intimidated, and forcibly entered, 
broke, and destroyed property, searched persons, effects, and 
papers, arrested persons, seized papers and documents, cursed, 
insulted, beat, dispersed, and bayoneted union members by order 
of the commanding officer. They likewise entered petitioner's 
adjacent living apartment, insulted his wife, searched his person 
and effects, and seized his papers and documents, and in general, 
in a populous and orderly city, perpetrated a reign of terror, 
violence, and crime against citizen and alien alike, and whose only 
offense seems to have been peaceable insistence upon and exercise 
of a clear legal right. 

This opens up dangerous possibilities of influence not 
only by employers but also by rival conservative unions 
to secure the annihilation of radical labor organiza- 
tions through wholesale arrests and expulsions. I believe 
that the eventual disappearance of the I.W.W. is highly 
desirable, but Congress ought to consider carefully in the 
light of the English experience with the Irish Land League 
whether the deportation of all intelligent alien members is 
the best method to obtain that result. 

The government ought not to be satisfied to base such dras- 
tic action merely on an examination of the literature of the 
organization by men who are unfamiliar with its economic 
background. An alternative plan for dealing with the very 
difficult problem of this organization would be a vigorous 



THE DEPORTATIONS 275 

suppression and punishment by state law of acts of sabotage, 
while the Federal Government before arresting or deporting 
any more members should ascertain the possibility of curing 
the causes of the revolutionary character of the I.W.W., 
such as the permanent presence of a large body of migratory 
labor, homeless, wifeless, jobless. The Department of Labor 
has at hand for purposes of consultation men who have 
studied the I.W.W. carefully and men who aroused the 
enthusiastic efforts of its members in war industries.^^ Such 
a conference might evolve a new and more satisfactory 
policy. 

For example, deportation does not seem quite the right 
way to handle the case of John Meehan,^® who was arrested 
in Everett, Washington, in May, 1917, for violation of a 
local anti-billboard law, and then ordered deported as an 
I.W.W. to England, from which he came twenty-four years 
ago. After eighteen months of incarceration he was landed, 
hatless, penniless, and with insufficient clothing, in England, 
where he has neither kith nor kin. 

(3) Anarchists 

Anarchists have long been subject to exclusion and expul- 
sion. If the term be taken in the popular sense of supporters 
of bomb-throwing and assassination generally, the statute is 
undoubtedly constitutional, and has been so held by the 
Supreme Court ^° in sustaining the exclusion of an English- 
man named Turner. The case possesses some literary 
interest, for one of his counsel was Edgar Lee IV^c^sters, 
whose acid-bitten portraits of life at Spoon River have indi- 
cated possibilities of improvement in American life. 

It is well known, however, that anarchism has no necessary 
connection with violence. It really means the belief which 
opposes every kind of forcible government and favors the 

58 See Bibliography, on I.W.W. 

59 Charles Recht (counsel for Meehan), American Deportation and 
Exclusion Laws, p. 9. 

60 Turner v. Williams, 194 U. S. 279 (1904). 



276 FREEDOM OF SPEECH 

abolition of all coercion over the individual by the com- 
munity.®^ Philosophical anarchists argue that most govern- 
mental action is required because of inequalities in property, 
and point to many activities of life where these inequalities 
do not operate and coercion has been found unnecessary. 
For example, if a number of friends are cruising on a sloop, 
they require no policeman to keep order or compel each per- 
son to do his allotted task. Mutual agreement and the desire 
to achieve praise and avoid blame from one's companions 
furnish sufficient incentive to right action. The anarchist 
looks forward to the time when life will be such a perpetual 
holiday, and hopes to convert all men to the same faith in 
human nature. While waiting and working for the mil- 
lennium, he will, with rare exceptions, think it consistent with 
his theories to render obedience to existing laws, until they 
shall disappear forever. Kropotkin and Tolstoi in Russia, 
Herbert Spencer and Bertrand Russell in England, have at 
least been strongly influenced by this view that all govern- 
ment is evil. It is obvious that such men and many others 
have no desire to employ force to end force, but seek to attain 
their ideal system gradually and peacefully through discus- 
sion and education. 

These philosophical anarchists caused much perplexity in 
the early days in this country, even to such a strong cham- 
pion of soul-liberty as Roger Williams, who argued for their 
suppression in his celebrated letter of 1655 to the people of 
Providence : ®^ 

There goes many a ship to sea, with many hundred souls in 
one ship, whose weal and woe is common, and is a true picture 
of a commonwealth or a human combination or society. It hath 
fallen out sometimes that both Papists and Protestants, Jews and 
Turks, may be embarked in one ship; upon which supposal I 
affirm, that all the liberty of conscience that ever I pleaded for, 
turns upon these two hinges — that none of the Papists, Protes- 
tants, Jews, or Turks, be forced to come to the ship's prayers or 
worship, nor compelled from their own particular prayers or 

ei Bertrand Russell, Proposed Roads to Freedom, 32. 

82 Moses Colt Tyler, History of American Literature, II, 261. 



THE DEPORTATIONS 277 

worship, if they practise any. I further add, that I never denied 
that, notwithstanding this liberty, the commander of this ship 
ought to command the ship's course, yea, and also command that 
justice, peace, and sobriety, be kept and practised, both among 
the seamen and all the passengers. If any of the seamen refuse 
to perform their services or passengers to pay their freight; if 
any refuse to help, in person or purse, toward the common charges 
or defense; if any refuse to obey the common laws and orders 
of the ship, concerning their common peace or preservation ; if any 
shall mutiny and rise up against their commanders and officers; 
if any should preach or write that there ought to be no commanders 
or officers, because all are equal in Christ, therefore no masters 
nor officers, no laws nor orders, nor corrections, nor punishments ; 
— I say, I never denied, but in such cases, whatever is pretended, 
the commander or commanders may judge, resist, compel, and 
punish such trangressors, according to their deserts and merits. 
This, if seriously and honestly minded, may, if it so please the 
Father of Lights, let in some light to such as willingly shut 
not their eyes. 

However, when government became stronger in this coun- 
try and stood ready to punish any of these men who actually 
disobeyed the law, it was realized that they presented no 
danger merely because of their thought and teachings. 
Many Quakers in the Colonies refused to participate in gov- 
ernment because of the New Testament teachings of non- 
resistance. A similar philosophy was held by many great 
Americans in the 1840's when as Emerson said, with a twinkle 
in his eye, every reading man went round with a draft of a 
new community in his waistcoat pocket. The famous set- 
tlements at Brook Farm and Fruitlands were peopled by 
just such persons. 

The Deportation Act of 1918 undoubtedly applies to these 
peaceful disbelievers in organized government as well as to 
the bombers, and so did all the statutes since 1903, but the 
power of Congress to bar them out has never been upheld 
by the Supreme Court. In the decision just mentioned, 
which involved only the exclusion of a violent anarchist, 
Chief Justice Fuller said nothing at all about expulsion, but 
suggested in passing that Congress could exclude even inno- 



278 FREEDOM OF SPEECH 

cent anarchists if it was of the opinion " that the tendency of 
the general exploitation of such views is so dangerous to the 
public weal that aliens who hold and advocate them would be 
undesirable additions to our population." On the other hand, 
Justice Brewer, in concurring, expressly refused to deter- 
mine the right of an alien, if only a philosophical anarchist, 
" one who simply entertains and expresses the opinion that 
all government is a mistake, and that society would be better 
off without any." ^' 

The public does not realize that it is men of this type as 
well as violent anarchists whom the government is now send- 
ing out of the country after long residence, during which 
they have necessarily remained aliens since the law forbids 
their naturalization. Take, for instance, the case of Frank 
R. Lopez, a Spaniard of the Ferrer school. This man has 
been in the United States seventeen years, belongs to the 
A. F. of L., is married, has a son bom in this country, owns 
his own home, and has always been a law-abiding member 
of society. Yet he has been ordered deported to Spain be- 
cause he held and expounded, in speech and writing, views 
which Judge Rogers of the Circuit Court of Appeals in New 
York expressly stated to be only philosophical anarchism 
and in no sense advocacy of a resort to force and revolution. 
Judge Rogers upheld the order of deportation because of 
the following testimony of Lopez ®* before the immigration 
inspector : 

Q. Do you believe in or advocate the overthrow by violence or 
force of the government of the United States.^ A. No, sir. 

63 194 U. S. 294, 296; italics mine, 

64 The testimony and opinion are from Lopez v. Howe, 259 Fed. 401 
(C. C. A., 1919). See the opinion of Knox, J., below, quoted in 260 
Fed. 485. The facts about the life of Lopez are stated by his counsel, 
Charles Recht, with additional extracts from his testimony, in Ameri- 
can Deportation and Exclusion Laws, Boston, 1919, p. 9. The testi- 
mony is also reprinted in 21 New Republic 98 (December 24, 1919). 
See the letter in 21 Neto Republic 356 (February 18, 1920), which 
finds the case so " incredible " that it wrongfully accuses the magazine 
of withholding utterances by Lopez of an inflammatory nature. The 
decision in the Federal Reporter expressly rests on philosophical an- 
archism and denies any advocacy of violence. 



THE DEPORTATIONS 279 

Q. Any other government, Spanish, or Italian, or Mexican? 
A. No, sir; our ideals are founded on education. 

Q. What are your ideals? A. Free thinking. 

Q. Don't you believe in the power of authority? A. What do 
you mean? 

Q. Organized government. Don't you think, if the President 
gives an order when Congress empowers him, that it should be 
obeyed ? A. Yes ; the orders should be obeyed. 

Q. Do you believe in the propriety of assassination of public 
officials of the United States or any other government? A. No, 
sir; not only of officials, but of nobody. Everybody has a right 
to live. 

Q. Do you believe in anarchy? A. What do you mean by 
anarchy ? 

Q. Well, it would be anarchy to fight against the laws of the 
United States, tear down buildings, blow them up. A. Anything 
else? I believe in anarchy, but it is not the way you explain it, 
or the way newspapers say anarchy is. Anarchy, the way news- 
papers explain it, assassinating women and children, dropping 
bombs, or anything like that, I don't believe in that. But I be- 
lieve in teaching, educating, and telling the people to better their 
conditions. If you mean that, I am proud of being an anarchist. 
I am against killing and against destruction. We are to con- 
struct. 

Q. How are you going to proceed to do this? A. We are not 
going to force our ideals on anybody's mind. We have con- 
ferences, we have lectures. The doors are open, and everybody 
is welcome. 

Q. You try to get people through advertising means ? A. Yes, 
for educational purposes. 

Q. For the educational purposes of teaching them anarchy? 
A. To teach them anarchy the way we understand it, but not the 
way you understand it ; the way many writers understand it. 

Q. What writers ? A. Tolstoi, Marx, Ferrer, Zola, Kropotkin, 
and many others. 

Q. If you are ordered deported, do you want to be separated 
from your wife and boy, or would you desire to have them go 
with you to Spain? A. It's up to the government; I think it is an 
injustice; I have done nothing wrong; I call it an injustice; if 
a man is going to be punished for his thoughts and ideas, it is 
an injustice. 

Unless the Supreme Court declares this construction of 
the statute unconstitutional, Lopez will be deported to Spain. 



280 FREEDOM OF SPEECH 

The expulsion of other men with just the same views has 
been sustained.^^ Judge Rogers emphasizes the point that 
Lopez had never become naturahzed, overlooking the fact 
that if he had become a citizen our courts would take his 
naturalization papers away from him on the ground that 
they were obtained by fraud,®^ although it seems just as con- 
sistent for a man who believes that all government should 
eventually be abolished to swear allegiance honestly to the 
government of the United States as it is for a man to render 
obedience to a statute which he thinks ought to be repealed. 
Certainly the conduct and testimony of Lopez show that he 
would have made as good a citizen as most native-born 
Americans. Judge Rogers also says that Lopez is deported, 
not because he entertained these thoughts and ideas, but be- 
cause he sought to instil them into the minds of others. 
However this may be in his case, the statute expressly 
authorizes men to be thrown out of this country after long 
residence for ideas which they have never expressed to a 
single person until they were subjected to an inquisition by 
the immigration inspector. Such a law suppresses not only 
freedom of speech but freedom of thought. The following 
entry added by the Inspector to the testimony of Louis 
Gyori, who has been ordered deported because he expects a 
revolution which will compel every one to work but will only 
come at some uncertain time when the majority want it, is 
very significant : ®^ 

Very careful and steady questioning was necessary to bring out 
the alien's beliefs, political and industrial. 

VI. The Deportations and the Bill of Rights 

Having thus shown that the deportation statute has been 
put into force against men who are in no way advocates 

^^Ex parte Pettine, 259 Fed. 733 (1919); see also 21 New Repub^ 
lie 98. 

66 U. S. V. Stuppiello, 260 Fed. 48? (1919). 

67 "The Anarchist Deportations," 21 New Republic 98 (December 
24, 1919). 



THE DEPORTATIONS 281 

of violence, I will now return to the general question of the 
power of Congress to make laws excluding or expelling men 
from this country because of mere membership in societies 
which it considers objectionable or because of the holding 
or expression of peaceful ideas which it regards as having 
a bad political tendency. The constitutionality of such 
statutes is defended on two grounds. 

First, it is said that the power of Congress to decide what 
aliens shall be admitted or shall remain in this country is 
unrestricted by the Constitution. One judge calls this power 
" well-nigh plenary in its absolutism." ^* Chief Justice 
Fuller suggests that if Congress can shut out all aliens, it 
can therefore shut out any group of aliens it pleases. Such 
a contention seems to me unsound. One might as well argue 
that because a Republican Congress can refuse to naturalize 
all aliens, therefore it can refuse to naturalize only those who 
express the intention of casting a Democratic vote at the 
next election. The First and Fifth Amendments in the Bill 
of Rights limit all the powers of Congress, including the 
power over the exclusion and expulsion of aliens. 

Aliens are " persons " within the Fifth Amendment, whom 
Congress cannot deprive of liberty and property except " by 
due process of law," that is, by methods which are appropriate 
to the emergency. It cannot turn the aliens whom it wishes 
to deport loose in an open boat on the Atlantic, or carry 
them across the border into Mexico and leave them wander- 
ing the desert. No one would consider this a reasonable 
way of returning them to their own country. Moreover, the 
method of classifying aliens for deportation is as important 
as the manner of expulsion. If Congress has unlimited 
power to remove alien members of any group it chooses, all 
Roman Catholics, all Jews, all Russians, any class that 
happens to be unpopular at the moment, can be ousted no 
matter how long they have been in the United States. It 
has been repeatedly decided by the Supreme Court that the 
mere existence of a legislative power such as taxation, does 

68 Ex parte Pettine, supra. 



282 FREEDOM OF SPEECH 

not (under the "due process" clause) involve the right to 
exercise that power in a discriminatory manner against a 
group such as all red-headed men, who are selected arbi- 
trarily without reasonable relation to the facts and the needs 
of society.^' The discretion of Congress to determine the 
basis of classification must be very wide, but it is not un- 
bounded. In particular, classification of the objects of any 
recognized Congressional power must not be used solely for 
the purpose of accomplishing a result prohibited by the 
First Amendment. Congress can tax all incomes, but an 
income tax of 50 per cent on Socialist college professors 
alone would be a convenient but unconstitutional way to 
suppress freedom of speech. Furthermore, it seems probable 
that the " due process " clause renders the power of Con- 
gress over the expulsion of aliens much narrower than the 
power to refuse them admission, because the deprivation of 
liberty and property is so much greater after an alien has 
once been admitted and become settled in this country. 
Many more individual interests claim protection. Congress 
could undoubtedly refuse admission to aliens with diseased 
eyes and could probably expel such aliens after several years' 
residence ; possibly it could exclude aliens with blue eyes ; but 
a law ordering all aliens with blue eyes to leave the country 
no matter how long they had been here would be clearly a 
violation of the Fifth Amendment. 

The power over aliens must also be subject to the First 
Amendment, for that declares that " Congress shall make no 
law abridging the freedom of speech or of the press," and 
a deportation statute is a " law." Nevertheless, that 
Amendment does not mean to deny the government the 
power of self-preservation. Some opinions may be so dan- 
gerous to the nation that men holding them may be kept out 
or even expelled. In other words, we must determine the 
limits of freedom of speech in relation to deportation ac- 
cording to the principles laid down in the first chapter. 

69 Gulf, etc., Ry. v. Ellis, 165 U. S. 150, 165 (1897); Connolly v. 
Union Sewer Pipe Co., 184 U. S, 640, 660 (1902). 



THE DEPORTATIONS 283 

In this connection, I must consider the second argument 
in favor of the validity of these clauses against radicals in 
the Deportation Act. It is urged by Chief Justice Fuller 
in the Turner case ^^ that the statute has nothing to do 
with freedom of speech. 

It is, of course, true that if an alien is not permitted to enter this 
country, or, having entered contrary to law, is expelled, he is in 
fact cut off from worshiping or speaking or publishing or 
petitioning in the country, but that is merely because of his exclu- 
sion therefrom. He does not become one of the people to whom 
these things are secured by our Constitution by an attempt to 
enter forbidden by law. 

This argument seems to me very questionable because it 
regards freedom of speech as purely the individual interest 
of the alien. We have seen in the first chapter that it is 
also a social interest of the community as a whole. Al- 
though the alien who is barred out may not be entitled to 
any claim under our Bill of Rights, persons already here 
are seriously affected if they are denied the privilege of 
listening to, and associating with a foreign thinker. Fur- 
thermore, the progress of the country as a whole may be 
gravely retarded. Truth is truth, whether it comes from a 
citizen or an alien, and the refusal to admit a wise foreigner, 
especially if there is a postal censorship on books, may 
simply result in our remaining ignorant. Massachusetts in 
the middle of the eighteenth century would have been un- 
willing to allow Bishop Berkeley to settle in her midst, but 
if Rhode Island had also refused to admit him, it would have 
impoverished American thought. Refusal to admit Bernard 
Shaw or Bertrand Russell in 1920 would operate in the 
same way. Roman Catholic citizens of the United States 
would surely be aggrieved by a law barring all future immi- 
grants of that faith. Therefore, freedom of speech is neces- 
sarily affected by the exclusion of aliens for their opinions, 
and such exclusion is unconstitutional unless the social inter- 

70 See note 60. 



284 FREEDOM OF SPEECH 

est in the attainment of truth is outweighed in the balance 
by the other interests involved. The First Amendment does 
not read, " No citizen shall be deprived of freedom of speech." 
It prohibits all laws " abridging the freedom of speech or of 
the press." 

What has been said applies still more forcibly to the 
expulsion of long-established aliens for their views and utter- 
ances. This has always been a favorite method of dealing 
with the heterodox. Almost all the wholesale deportations 
of history, just like Mr. Palmer's January raid, have been 
an effort to overcome " evil thinking." Spain expelled the 
Moors ; England in the reign of Edward III banished fifteen 
thousand Jews; and Louis XIV in 1685 drove out the 
Huguenots from France. In 1891 President Harrison 
called the attention of Congress to the action of Russia, 
a friendly nation, in banishing thousands of Jews.'^ Al- 
though there are many precedents in history for the whole- 
sale expulsion of Communists, they are not precedents which 
we should be proud to follow. 

Therefore, the deportations may infringe the national 
policy expressed by the First Amendment, even if they 
do not transcend the extreme limits of constitutional power. 
It seems to me more profitable to leave the question of con- 
stitutionality to future judicial discussion, and simply out- 
line the conflicting factors which determine the wisdom of 
the deportation of radical aliens to-day. 

In favor of deportation are, first, the desire of society 
for order, which was considered in the last chapter, and 
besides this, the interest of the nation in keeping its popu- 
lation free from elements which are considered undesirable 
additions to our present and future stock. The same social 
need found expression in the Chinese Exclusion Acts. It 
is this second factor which makes the power of Congress 
over aliens so wide. The war power should, I have endeav- 

71 Moore's Digest of International Law, VI, 358; this has refer- 
ence to Russian subjects. On American Jews expelled from Russia, 
see ibid.. IV. Ill ff. 



THE DEPORTATIONS 285 

ored to show, be used against utterances onlj to ward 
off dangerous acts, but this power over immigration is 
primarily directed to dangerous persons. It is concerned 
less with what men do than with what they are — whether 
they are diseased, crippled, of psychopathic inferiority, lia- 
ble to become a public charge. The danger-test of the 
Schenck case still holds good, but in a new form. Congress 
may wisely act now, although there is " no clear and present 
danger " of violence, for " the substantive evil which Con- 
gress has the right to prevent " is in this problem the pres- 
ence of persons who are so undesirable that they ought to 
be denied or deprived of an American domicile. 

Undoubtedly, men may be undesirable and dangerous per- 
sons because of their ideas as well as physical and mental 
derangements. On the other hand, the need of society for 
truth and progress must come into play, and in determin- 
ing who are undesirable we must be ever on our guard 
against applying the test of conjectural and remote tend- 
encies. It is not at all the same provable question of fact 
as heart trouble or insanity.'^ For instance, much of the 
reasoning in the philosophical anarchist cases, which stig- 
matize the doctrine as " inimical to civilization," is purely 
speculative, and smacks of the eighteenth century sedition 
trials. And the organization clauses, in expelling men who 
are not undesirable themselves just because they have un- 
desirable associates, carries the logic of national integrity 
one step beyond the standard of individual suitability for 
residence in America. 

The record of philosophical anarchists shows that they are 
no more prone to disorder than any religious sect, and what- 
ever we may think of their ultimate faith, they may be of 
great benefit in society, both for their constructive schemes 
of voluntary organization and for their pointed criticisms 
of the evils of existing governments. Let me offset the rea- 

72 See American School of Magnetic Healing v. McAnnulty, 187 U. S. 
94 (1902), and the quotation from Justice Brandeis in the Pierce case, 
p. 105, supra. 



286 FREEDOM OF SPEECH 

soning of Roger Williams with another ship-parable (ships 
being rather appropriate in this chapter) : ^^ 

"A sailor related to me," writes Benjamin Constant, 
" that he was once on board a vessel with a passenger who 
had frequently made the same voyage. This passenger 
pointed out to the captain a rock hidden beneath the waves, 
but the captain would not listen to him. On his insisting 
upon it, the captain had liim thrown into the sea. This 
energetic measure put an end to all remonstrances, and 
nothing could be more touching than the unanimity that 
reigned on board, until, suddenly, the vessel touched the 
reef, and was wrecked. They had drowned the giver of the 
warning, but the reef remained." 

Another reason against wholesale deportation for ideas 
is that we have a national reputation to live up to, which 
we should hesitate to sacrifice. We have drawn millions of 
workers to our soil, not merely by the material magnet of 
high wages, but by the great hope of freedom from all the 
tyranny of European empires. After priding ourselves for 
a century on being an asylum for the oppressed of all na- 
tions, we ought not suddenly to jump to the position that 
we are only an asylum for men who are no more radical than 
ourselves. Suppose monarchical England had taken such a 
position toward the Republican Mazzini or the anarchist 
Kropotkin. Sweden, next door to Bolshevik Russia, allows 
and even encourages by law extensive freedom of speech. 
Switzerland, with her small population, has harbored even 
bomb-throwers and Nicolai Lenine with perfect safety. But 
the United States with one hundred million inhabitants, four 
thousand miles away from the scenes of revolution, is urged 
to be afraid of a few thousand men like Lopez and the advo- 
cates of " mass action." We shall soon be in the shame- 
ful position of seeing pohtical offenders from this country 
demanding asylum in the very lands from wliich men once 
fled to be free to think and talk on our shores. 

The international consequences of the deportations are 

13 Letters on England, Louis Blanc, London, 1866, I, 438. 



THE DEPORTATIONS f 287 

very serious. Not only are we erecting a Chinese wall to 
keep out ideas, but we are helping to increase the very un- 
rest in Europe that we fear. Every one of sense, no matter 
what his opinion of the present government of Russia, be- 
lieves that the restoration of order in that country is essen- 
tial to the provisioning and the peace of Europe. We 
began this pacification of Russia by sending in Admiral 
Kolchak. We end by sending in Emma Goldman. The 
harm that she did during her thirty-four years in the United 
States was nothing beside the unrest and international irri- 
tation she is creating in Russia, where she has already or- 
ganized the " Friends of American Freedom." A nuisance 
here, she is a heroine over there and one more element of in- 
stability in the Russian situation. Look at Larkin, whom the 
British deported from Ireland, where they could keep an eye 
on him. No single man has done more to stir up bad feeling 
against Great Britain in this country. What sort of an 
international house-cleaning are we going to have if each 
country grabs up turbulent persons and dumps them across 
the border upon its neighbor's land? I have no sympathy 
whatever with these extremists, but as a matter of expediency 
they may be doing far less harm when they talk to foreigners 
who are in this country under American inspiration than 
when they are sent with bitterness in their hearts to spread 
hatred against us in the very countries to which we must 
look for future immigrants. 

Other international difficulties are bound to arise. If we 
make peace with the Soviet Government, how can we declare 
any one who endorses its political and economic theories 
an outlaw? Already the Secretary of Labor is proposing 
to decide whether that government advocates revolution so 
that he can deport Mr. Martens,^* a job which seems more 
within the duties of the Secretary of State. Soon some 
one will suggest that the attempted assassination of Vis- 

74 "Martens and Our Foreign Policy," Lincoln Colcord, 110 Nation 
324 (March 13, 1920). Palmer Deportations Testimony, 180, gives the 
case for deportation. 



288 FREEDOM OF SPEECH 

count French and the death of numerous English officials 
in Ireland is some evidence that Sinn Fein is an 
organization which " advocates the duty, necessity, or pro- 
priety of the unlawful killing of officers of an organized 
government because of their official character," and Secretary 
Wilson will have to pass on the deportation of President 
De Valera. 

Think of the example which these recent raids have set 
to less orderly nations, this resorting to methods which we 
have repeatedly declared to be a violation of international 
law, when used against Americans abroad.'^ We can no 
longer take that position. If Mexico should conclude that 
certain Americans there had advocated a revolution in that 
country by force and violence, or a " clean-up " by the 
United States (by force), then it could seize our fellow- 
citizens from their beds at midnight, throw them into Black 
Holes like the Detroit bull-pen, separate them from their 
families, let their business go to pieces, turn their wives 
and children over to the local charities, and ship them in 
an army transport to New Orleans, knowing that every act 
would be supported by precedents of what has been done in 

75 Cf. with the January, 1920, raids, the following facts from 
Moore's Digest of International Law, IV, 108: "In May, 1898, F. 
Scandella, a citizen of the United States, engaged in the cattle and 
transportation business at Ciudad Bolivar, Venezuela, was suddenly ar- 
rested while walking in the streets of that city, and was thrown into 
prison, where he was denied communication with his family and friends. 
Next day he was taken under guard to a steamer, and was sent to the 
British island of Trinidad. His wife and five young children were left 
without funds; his cattle and mules were stolen; and his house, which 
was about three miles from town, was sacked. The authorities of the 
State of Bolivar alleged as the cause of his seizure and expulsion 
'frequent denunciations' and 'well-founded suspicions' that he was 
•plotting secretly against public order.' The United States minister 
interposed in the case, presenting testimonials as to Mr. Scandella's 
character and standing; and the President of the Republic intimated 
a desire to settle the case outside of diplomatic channels. Scandella 
was permitted to return to Venezuela; and early in July, 1898, the case 
was understood to have been adjusted on the basis of $1,600 in cash, 
American gold, and a promise of reimbursement for property taken or 
destroyed." Other examples of arbitrary expulsion are the Hollander 
case in Guatemala, ihid., 102; and the Bluefields cases in Nicaragua, 
ibid., 99. Several arbitrations on expulsion are contained in Moore's 
Digest of International Arbitrations, IV, c. LX. 



THE DEPORTATIONS 289 

this country last winter to the citizens of a government that 
was too weak to hit back. 

Finally, in deciding whether radical deportations should 
be carried out further, we ought to consider two classes of 
people in this country — first, ourselves; secondly, aU the 
aliens. 

That deportations are very popular with American citi- 
zens is undeniable, far more so than the proposed federal 
sedition bills. How can we account for this astonishing 
desire to reverse our national policy? Besides the nervous 
effect of the war, the shock of the Russian Revolution, the 
unpreparedness for wide intellectual divergencies, of which 
I shall speak more fully in the next chapter, there is, I sus- 
pect, another element. Genuinely grateful as we all are in 
our thinking moments to our immigrant population, most 
of us have a hidden emotion which comes to the surface in 
a time of excitement, the wish that w6 did not have in our 
midst these foreigners who are so different from ourselves. 
The basis of dislike is normally unlikeness.'® It is just the 
same feeling that led Dr. Johnson to say after the experience 
of a lifetime that most foreigners were fools. We are go- 
ing through the old Know Nothing affair over again. 

This instinct is normally controlled by a recognition of 
what immigration has done for the United States. It is 
not true that the aliens owe us everything and we owe them 
nothing. They have no vote, but they have hands and mus- 
cles. They have come here at our request, often at our 
earnest solicitation, to dig our sewers, cart our garbage, 
weave our cloth, build our roads and railways. And they 
have minds like ourselves. Absence of citizenship means 
the loss of the vote, but does it give us the moral right aftei* 
a man is admitted to prescribe what he shall think, under 
penalty of banishment from his new home, and perhaps forci- 
ble return to the secret police from whom he fled? Doubt- 

76 " The Nervousness of the Jew," Dr. A. Myerson, 4 Mental Hy- 
giene 65 (January, 1920) ; Bagehot elaborates the point in his essay 
on "The Metaphysical Basis of Toleration," 



290 FREEDOM OF SPEECH 

less, a policy of hands-off will result in the presence of a few 
dangerous agitators springing up in the great army of 
workers, but we should be willing to take the foam with 
the beer. This is not the first time that restless spirits, 
many of whom had been actually engaged in the labor wars 
of Europe, have carried the instinct of industrial strife and 
violence with them to their new country.^^ We have lived 
through it until this year in confident serenity. We have 
believed that the unrest brought from the other side of the 
ocean would eventually be dissipated by contact with Amer- 
ican life. The radical shows the same change under a fos- 
tering environment as the Jew, who is rapidly becoming as- 
similated to his neighbors. " What persecution could not 
do through the centuries, toleration does in a generation." " 
The Bolshevist peasant in Russia, having acquired a bit of 
land, is already angering his rulers by his conservatism. In 
the same way a savings bank account, a steady job, and 
plenty of good-humored toleration and friendly help and 
encouragement, will bring into harmony with our ideals all 
but a few heated theorists who have been in our midst all 
through the war and ought not in peace to be such a menace 
to our national safety that we cannot counteract them by 
sound reasoning. Secretary Wilson would, if he had his 
own way, adopt this very method : ^^ 

I look upon any alien who comes to this country and advocates 
the use of force for the overthrow of our Government as being 
in exactly the same position as an invading enemy, and that it is 
no undue hardship to send him back to the country whence he 
came. Nevertheless, I would not deal with the subject matter 
in that way. In dealing with it during the period of the war 
the policy of the Department of Labor was to send high-class, 
intelligent working men, who had lived the lives and spoke the 
language of the workers themselves, into the places where working 
men congregate, carrying a counter-propaganda puncturing the 

77 See account of the Molly Maguires in Rhodes, History of the 
United States, VIII. 

7 8 Mverson, op. cit. 

79 Letter to John E. Milholland, reprinted in 110 Nation 326 (March 
13, 1920). 



THE DEPORTATIONS 291 

fallacy of the philosophy of force as applied to democratic in- 
stitutions. We believed we had successfully met the situation until 
Congress in its wisdom curtailed the appropriation that made it 
possible for us to carry on the work we had been doing. 



VII. Suggested Changes m Our Deportation Policy 

As an alternative to our present policy of deportations I 
would suggest a continuance of Secretary Wilson's plan for 
the first step. The last few years have taught us that the 
melting-pot will not entirely take care of itself. Just as the 
merits of free trade in goods are lessened if the normal 
processes of competition are checked by monopolies and 
dumping, so free trade in ideas requires that the barriers to 
the interchange of argument presented by illiteracy and 
foreign languages shall somehow be broken down. 

Secondly, Congress should put into force the following 
recommendation from the Secretary of Labor : ^° 

If lawfully admitted aliens are to be deported from the United 
States for any cause, in my judgment the deportation should be 
the result of judicial proceedings in the courts rather than through 
administrative action. 

The Assistant Secretary made the same recommendation 
four years ago : *^ 

In most cases administrative decisions must in the very nature 
of administration be made by subordinates ; in all instances they 
must be made along hard and fast lines according to unelastic 
legislation designed to promote a governmental policy. Deter- 
minations regarding private rights by such decisions are mere 
incidents of administration. . . . Nothing in my official experience 
in the Department of Labor has impressed me more deeply than 
the conviction that fundamental personal rights should be more 

80 Ibid. 

81 " Administrative Decisions in Connection with Immigration," 
Louis F. Post, 10 Am. Pol. Sci. Rev. 260, 261 (1916). See Post Deporta- 
tions Testimony, 239, 246 ff. An alternative method would be an inde- 
pendent administrative tribunal of three experts to sit in a purely- 
judicial capacity upon all deportation cases, like the Commissioner of 
Patents in his field. 



292 FREEDOM OF SPEECH 

scrupulously guarded in immigration cases than is possible through 
administrative decisions made in the course of executive routine. 

Thirdly, a conference might be held to include immigra- 
tion officials, members of Congress, men who have come into 
contact with radical aliens on the President's Mediation 
Commission and in the conduct of war industries, and schol- 
ars like Brissenden who have studied revolutionary organi- 
zations. This conference should outline for the guidance 
of Congress a program for our future deportation policy. 
It would seem desirable to limit deportable aliens to men 
who are themselves personally objectionable on account of 
the advocacy of force. 

Finally, the Secretary of Labor or the President should 
be given discretion whether or not to expel an alien who is 
within a deportable class. At the present time Assistant 
Secretary Post *^ shows that deportation must be automatic, 
no matter how cruel or unwise it may be. An imprisoned 
criminal may be pardoned by the President, but not even he 
can prevent an alien who comes under the statutes from being 
sent overseas. 

I make these suggestions as an American, believing that 
we must depend on a large immigrant population for many 
years to come and that we all desire them to be loyal mem- 
bers of the community, devoted to our institutions whether 
or not they decide to abandon their allegiance to their old 
land. Men cannot be forced to love this country. They 
will love it rather because it does not employ force except 
against obviously wrongful overt acts. They will love it as 
the home of wise tolerance, of confidence in its own strength 
and freedom. Undoubtedly there is much discontent in cer- 
tain groups of aliens at the present time. It has been ac- 
centuated by the excitement of the Russian Revolution, 
which must eventually subside. We are not likely to de- 
crease this discontent by dragging men away from their 
families and either shipping them abroad or releasing them 

82 Ibid. 



THE DEPORTATIONS 293 

after many bitter days in prison. The relatives and friends 
of those deported will not have any increased love for our 
government. The raids have become a text for more agi- 
tators, who speak to men and women who now have a real 
reason for wanting to get rid of the existing form of gov- 
ernment. It is not the soap-box orators, but Mr. Palmer 
with his horde of spies and midnight housebreakers, that have 
brought our government into hatred and contempt. Yet it 
is not too late to abandon this great error, recompensing 
the injured and adopting a fresh policy for the future. Let 
us limit punishment to overt acts. Let us trust an Anglo- 
Saxon jury trial to safeguard us even from aliens. Let us 
rely on tried American methods, and not upon the secret 
and summary processes of the last few months. 



CHAPTER VI 

JOHN WILKES, VICTOR BERGER, AND THE FIVE 

MEMBERS 

If Charles wished to prosecute the five members, a bill against 
them should have been sent to a grand jury. — Macaulay, Essay 
on Hallam. 

It is one of the unfortunate results of governmental action 
against freedom of speech that the persons who retain suffi- 
cient courage to come into conflict with the law are often 
of a heedless and aggressive character, which makes them 
unattractive and devoid of personal appeal. Too often we 
assume that such persistent trouble-makers are the only per- 
sons injured by a censorship or a sedition law, and con- 
clude from the indiscreet and unreasonable qualities of their 
speech and writing that after all the loss to the world of 
thought has been very slight. Too often we forget the 
multitude of cautious and sensitive men, men with wives and 
children dependent upon fhem, men who abhor publicity, 
who prefer to keep silent in the hope of better days. We 
cannot know what is lost through the effect upon them of 
repression, for it is simply left unsaid.^ The effort of the 
agitator is made for their sake as well as his own, and if 
he wins the gain to truth comes, not perhaps from his ideas, 
but from theirs. The men and women mentioned in this 
book, whom reflection has made me consider victims of un- 
wise and often illegal suppression, are not indeed political 
prisoners whose ideals I can share, as I might those of 

1 Tolstoy once wrote: "You would not believe how, from the very 
commencement of my activity, that horrible Censor question has tor- 
mented me! I wanted to write what I felt; but at the same time it 
occurred to me that what I wrote would not be permitted, and invol- 
untarily I had to abandon the work. I abandoned, and went on aban- 
doning, and meanwhile the years passed away." — Geaham Waixas, The 
Great Society, 196. 

294 



WILKES AND HIS SUCCESSORS 295 

Silvio Pellico or Grotius, and it may be that even 
after due allowance has been made for the natural blind- 
ness of a contemporary to the merit of their thinking, 
that only one or two among them, like Bertrand Russell, 
are men whose work has enduring worth. Yet the views 
and even the personal qualities of the victims of persecu- 
tion have little relation to the justice of their cause. Few 
objects of intolerance have touched such a low level of 
thought and action, few have rendered more numerous and 
more valuable services to liberty than John Wilkes. 

I. John Wilkes 

In his person though he were the worst of men, I contend 
for the safety and security of the best. — Lord Chatham. 

" That name," says Trevelyan, " which was seldom out 
of the mouths of our great-grandfathers for three weeks 
together, had been stained and blotted from the first." A 
rake and a prodigal, unfaithful to the wife whose fortune 
he looted for use in election briberies, lacking in genuine 
devotion to any political ideal, he nevertheless by sheer 
pluck and impudence led the fight to establish in the law of 
all English-speaking countries five great principles of free- 
dom: the immunity of political criticism from prosecution; 
the publicity of legislative debates ; the abolition of out- 
lawry, which condemned a man in his absence; the pro- 
tection of house and property from unreasonable searches 
and seizures ; and the right of a duly elected representative 
of a constituency to sit in the legislature unless disquali- 
fied by law, no matter what personal objections his col- 
leagues may have to his opinions and writings or to his 
previous convictions for sedition. So great were his achieve- 
ments that he became a household word on this side of the 
Atlantic. One of the largest cities in Pennsylvania is named 
for him. Men called their children after him. One New 
England admirer had three sons, Wilkes, Pitt, and Liberty. 
In the eyes of our forefathers he was the most conspicuous 



296 FREEDOM OF SPEECH 

combatant against the doctrine, so obnoxious to them, that 
men might be maltreated, imprisoned, exiled, disfranchised, 
for the supposedly evil tendencies of their political opinions. 
The preceding chapters have shown the gradual revival of 
that doctrine in our midst, first in war and now in peace, 
first against pacifists and pro-Germans, then against radical 
aliens, until finally the war with " evil-thinking " has brought 
us to the point of governmental action against radical citi- 
zens with a constantly diminishing standard of radicalism, 
and two of the great principles for which Wilkes fought 
amid the applause of our ancestors are in grave peril, free- 
dom from unreasonable searches and seizures and the right 
of the people to choose their representatives. 

II. The Raids of 1763 and the Raids of 1919 

The poorest man may in his cottage bid defiance to all the 
forces of the Crown ; it may be frail, its roof may shake, the wind 
may blow through it; the storm may enter, the rain may enter; 
but the King of England can not enter; all his forces dare not 
cross the threshold of that ruined tenement. — Lord Chatham. 

On the 23rd of April, 1763, appeared No. 45 of the North 
Briton, commenting upon the king's speech and upon the 
unpopular peace recently concluded. It was conducted by 
Wilkes, who had played a large part through this news- 
paper in driving Lord Bute from office and now castigated 
his successor, George Grenville, of Stamp Act fame. Other 
journalists abused public men under such disguises as the 
use of initials, but the North Briton called them by name. 
The Ministry resolved to prosecute for libel, but it was 
unknown who was the libeler, since those responsible for 
the newspaper had kept their identity concealed. Lord 
Halifax, one of the Secretaries of State, issued what was 
then called a general warrant, directing four messengers 
to take a constable, search for the authors, printers, and 
publishers, and seize them when found, together with their 
papers. 



WILKES AND HIS SUCCESSORS 297 

No one having been charged, or even suspected — no evidence of 
crime having been offered — no one was named in this dread in- 
strument. The offense only was pointed at, not the offender. The 
magistrate, who should have sought proofs of crime, deputed 
this office to his messengers. Armed with their roving commission, 
they set forth in quest of unknown offenders ; and unable to take 
evidence, listened to rumors, idle tales, and curious guesses. They 
held in their hands the liberty of every man whom they were 
pleased to suspect. Nor were they triflers in their work. In 
three days, they arrested no less than forty-nine persons on 
suspicion, many as innocent as Lord Halifax himself.^ 

Among the number were Leach, a printer who had printed 
another number of the North Briton, whose papers were 
seized ; and the publisher and printer of No. 45, with all 
their workmen. From them Wilkes was discovered to be 
the real offender, and he was carried off to the Secretaries 
of State. As soon as he was out of his house, the mes- 
sengers returned to it and took entire possession, refusing 
admission to his friends. They sent for a blacksmith, who 
opened the drawers of his bureau. The messengers dumped 
his papers, including his will and pocket-book, into a sack, 
and went off with them without even taking an inventory. 
Wilkes brought an action, not against the messengers, but 
against the man higher up, the Under Secretary of State, 
who had personally superintended the execution of the war- 
rant. Chief Justice Pratt, afterwards Lord Chancellor Cam- 
den, said of the warrant : ^ 

If such a power is truly invested in a secretary of state, and 
he can delegate this power, it certainly may affect the person 
and property of every man in this kingdom, and is totally sub- 
versive of the liberty of the subject. 

Wilkes recovered £1,000. Then he went still higher, and 
sued the Cabinet Minister who had issued the warrant, for 
false imprisonment, obtaining £4,000 damages. His asso- 

2 2 May's Constitutional History, 126. 

3 Wilkes V. Wood, 19 How. St. Tr. 1167 (1763). 



298 FREEDOM OF SPEECH 

elates brought similar actions. It is said that altogether 
these suits cost the Grenville Government £100,000. 

This warrant was doubly illegal in failing to specify the 
persons to be arrested and in giving no authority to search 
and seize papers or other property. Another warrant, is- 
sued the previous year because of alleged libels in the Moni- 
tor, did specify the author, John Entinck, and directed that 
he be seized, " together with his books and papers." This 
warrant was more specific, but not sufficiently so to be legal, 
for it did not name the particular papers to be seized, but 
gave authority to the messengers to take all his books and 
papers. Entinck sued the messengers and recovered £300. 
Pratt said in this case : * 

... If this point should be determined in favor of the juris- 
diction, the secret cabinets and bureaus of every subject in this 
kingdom will be thrown open to the search and inspection of a 
messenger, whenever the secretary of state shall think fit to charge, 
or even to suspect, a person to be the author, printer, or publisher 
of a seditious libel. 

The messenger, under this warrant, is commanded to seize the 
person described, and to bring him with his papers to be examined 
before the secretary of state. In consequence of this, the house 
must be searched; the lock and doors of every room, box, or 
trunk must be broken open; all the papers and books without 
exception, if the warrant be executed according to its tenor, must 
be seized and carried away; for it is observable, that nothing is 
left either to the discretion or to the humanity of the officer. 

This power so assumed by the secretary of state is an execution 
upon all the party's papers, in the first instance. His house is 
rifled; his most valuable secrets are taken out of his possession, 
before the paper for which he is charged is found to be criminal 
by any competent jurisdiction, and before he is convicted either 
of writing, publishing, or being concerned in the paper. . . . 

Papers are the owner's goods and chattels : they are his dearest 
property; and are so far from enduring a seizure, that they will 
hardly bear an inspection; and though the eye cannot by the 
laws of England be guilty of a trespass, yet where private papers 
are removed and carried away, the secret nature of those goods 
will be an aggravation of the trespass, and demand more con- 
siderable damages in that respect. Where is the law that gives 

4 Entinck v. Carrington, ibid., 1029 (1765). 



WILKES AND HIS SUCCESSORS 299 

any magistrate such a power ? I can safely answer, there is none ; 
and therefore it is too much for us without such authority to pro- 
nounce a practice legal, which would be subversive of all the 
comforts of society. . . , 

If suspicion at large should be a ground of search, especially 
in the case of libels, whose house would be safe ? 

The law of this case that search must be by warrant de- 
scribing the property to be seized is embodied in the Con- 
stitution of the United States. " Can we doubt," asks Jus- 
tice Bradley,^ " that when the Fourth and Fifth Amend- 
ments were penned and adopted, the language of Lord Cam- 
den was relied on as expressing the true doctrine on the 
subject of searches and seizures, and as furnishing the true 
criteria of the reasonable and * unreasonable ' character of 
such seizures.'' " We had our own grounds for opposing 
such arbitrary practices. The first of that long series of 
contests which led up to the American Revolution was the 
attack of James Otis upon the Boston Custom House offi- 
cers who were searching for smuggled goods under general 
warrants. " Then and there," said John Adams, " the child 
Independence was born." 

The Fourth Amendment reads thus: 

The right of the people to be secure in their persons, houses, 
papers, and effects, against unreasonable searches and seizures, 
shall not be violated, and no warrants shall issue, but upon prob- 
able cause, supported by oath or affirmation and particularly de- 
scribing the place to be searched, and the persons or things to be 
seized. 

The United States Supreme Court has made repeated use 
of this Amendment ® to prevent the use of evidence which 
has been seized without a search-warrant (even though under 
a warrant of arrest) or with a search-warrant which fails 
to specify the particular papers to be seized. 

5 See the full discussion of the historical background of the Fourth 
Amendment in Bovd ?'. U. S., infra. 

6 Boyd V. U. S', 116 U. S. 616 (1886); Weeks v. U. S., 232 U. S. 
383 (1914); Silverthorne Lumber Co. v. U. S., 251 U. S. 385 (1920). 



300 FREEDOM OF SPEECH 

In Boyd v. United States, the federal customs officials, 
acting under a statute and with a warrant, compelled the 
defendant to produce an invoice which they believed would 
enable them to forfeit goods. The Supreme Court held that 
the evidence could not be used. 

Any compulsory discovery . . . compelling the production 
of his private books and papers, to convict him of crime, or to 
forfeit his property, is contrary to the principles of a free gov- 
ernment. It is abhorrent to the instincts of an Englishman; it 
is abhorrent to the instincts of an American. It may suit the 
purposes of despotic power; but it cannot abide the pure atmos- 
phere of political liberty and personal freedom. 

In Weeks v. United States, Justice Day said of a seizure 
of papers before indictment: 

. . . This protection reaches all alike, whether accused of 
crime or not, and the duty of giving to it force and effect is 
obligatory upon all entrusted under our Federal system with the 
enforcement of the laws. The tendency of those who execute the 
criminal laws of the country to obtain conviction by means of 
unlawful seizures and enforced confessions, the latter often ob- 
tained after subjecting accused persons to unwarranted practices 
destructive of rights secured by the Federal Constitution, should 
find no sanction in the judgments of the courts which are charged 
at all times with the support of the Constitution and to which 
people of all conditions have a right to appeal for the maintenance 
of such fundamental rights. 

. . . The efforts of the courts and their officials to bring 
the guilty to punishment, praiseworthy as they are, are not to be 
aided by the sacrifice of those great principles established by years 
of endeavor and suffering which have resulted in their embodiment 
in the fundamental law of the land. 

The most recent case is Silverthorne Lumber Co. v. United 
States, decided in January, 1920. After the officers of a 
corporation had been arrested, " representatives of the De- 
partment of Justice and the United States Marshal without 
a shadow of authority went to the office of their company 
and made a clean sweep of all the books, papers, and docu- 
ments found there." Photographs and copies were made and 
the originals returned. Justice Holmes held that the seizure 



WILKES AND HIS SUCCESSORS 301 

was " an outrage," which prevented the government from 
making any use of the copies or even from obtaining a court 
order directing the corporation to produce the originals. 
Thus, under the federal law, an illegal search and seizure 
not only subjects the officials and other persons participat- 
ing in the raid to civil actions for damages, such as were 
brought by Wilkes and his associates, but also prevents the 
government from making even the most indirect use by way 
of evidence of the purloined material. 

It is, of course, necessary and legal that searches should 
sometimes be made for the detection of crime. For instance, 
the person of the man apprehended as a criminal can be 
searched without a warrant for a revolver or burglar's tools ; 
and search-warrants can be obtained to look for stolen goods 
or articles which are retained in violation of revenue laws. 
These warrants have such very serious consequences that 
they can only be obtained for very urgent and satisfactory 
reasons, and the rules of law pertaining to them already 
mentioned in the discussion of Wilkes and soon to be stated, 
are of more than ordinary strictness, and must be carefully 
observed. Even duly authorized searches are so obnoxious 
in a liberty-loving country, that the law should, as Cooley 
points out, be very slow to extend them : ^ 

The power of the legislature to authorize a resort to this 
process is one which can properly be exercised only in extreme 
cases, and it is better oftentimes that crime should go unpunished 
than that the citizen should be liable to have his premises invaded, 
his desks broken open, his private books, letters, and papers ex- 
posed to prying curiosity, and to the misconstructions of ignorant 
and suspicious persons, — and all this under the direction of a 
mere ministerial officer, who brings with him such assistants as he 
pleases, and who will select them more often with reference to 
physical strength and courage than to their sensitive regard to 
the rights and feelings of others. To incline against the enact- 
ment of such laws is to incline to the side of safety. In principle 
they are objectionable; in the mode of execution they are neces- 
sarily odious ; and they tend to invite abuse and to cover the com- 
mission of crime. 

' Constitutional Limitations, 7 ed., 432. 



302 FREEDOM OF SPEECH 

Searches and seizures, whether valid or not, are like spies, 
the price that a nation pays for sedition laws, for these 
can only be enforced by prying methods. The Espionage 
Act is careful to include a title on search-warrants. Over 
thirty-five big raids by federal officials took place during 
the war, sometimes with proper warrants, sometimes without.* 
Since the armistice, the Espionage Act was used to close 
the Seattle Union-Record, until a court declared the action 
to be invalid.^ The preceding chapter has shown the absence 
of search-warrants in the recent deportation round-ups, 
which should not only result in the release of most of the 
aliens, but subject the members of the Department of Jus- 
tice, including Attorney General Palmer, to the same kind 
of civil actions which Wilkes sustained against Lord Halifax, 
the Secretary of State. 

The best known instance of searches and seizures, is, how- 
ever, the spectacular series of raids conducted in June, 1919, 
by a joint committee of the New York Senate and Assembly. 
Probing committees seem indigenous to New York. They 
had one in 1780 to detect and defeat conspiracies of Loyal- 
ists.^" On March 26, 1919, the legislature adopted a joint 
resolution, which, after reciting that a large number of per- 
sons within the state were circulating propaganda calcu- 
lated to overthrow the government of the state and nation, 
and that it was the duty of the legislature to learn the whole 
truth regarding these seditious activities and pass appro- 
priate laws, appointed a committee of six " to investigate 
the scope, tendencies, and ramifications of such seditious ac- 
tivities, and to report the result of its investigation to the 
Legislature." The committee had power " to compel the 
attendance of witnesses and the production of books and 

8 Act of June 16, 1917, c. 30, Title XI. For a list of raids, see 
War-time Prosecutions, 38-40. 

8 Chapter II, note 114. 

10 Minutes of the Commissioners for Detecting and Defeating Con- 
spiracies in the State of New York, ed. V. H. Patsits, N. Y., 1909. 
See also on anti-Loyalist legislation in New York, establishing test 
oaths, Cummings v. Missouri, 4 Wall. 277, passim. 



WILKES AND HIS SUCCESSORS 303 

papers," and was in general a legislative committee. In no 
sense was it a body for the prosecution of crime/^ 

There were in New York several headquarters of radical 
organizations which this Lusk Committee, so called because 
of its chairman, determined to investigate. If the officers 
of these organizations had been served with a subpoena duces 
tecum, the usual order to produce any books and papers that 
were wanted, which as just stated the Committee had power 
to issue, no reason has ever been shown to believe that such 
material would not have been forthcoming. Instead, the 
Committee proceeded to take out search-warrants and raid 
the organizations, one after another, throwing their entire 
offices into hopeless confusion. New York has not a con- 
stitutional provision, hke the Fourth Amendment, but its 
Civil Rights Law enacts precisely the same words, and the 
Code of Criminal Procedure is very explicit. Also no per- 
son can be compelled in any criminal case to give evidence 
against himself.^^ It is possible that the federal rule against 
the use of illegally seized evidence does not prevail in New 
York,^^ but the test of what is illegal remains the same and 
renders liable to civil and criminal penalties and to the con- 
demnation of all law-abiding persons any officials who con- 
duct lawless and disorderly searches and seizures, especially 
when they act in the name of law and order. 

It is true that the Lusk Committee obtained search-war- 
rants for its raids, but this does not render the proceedings 
valid unless the warrants complied with the definite require- 
ments of the law, which are as follows: (1) Property may 
be seized even though no crime has been committed, if it is 
held or concealed with the intent to use it as the means of 
committing a public offense, for example, infernal machines." 

11 Concurrent Resolution, March 26, 1919. 

12 1 Birdseye & Gilbert, Consol. Laws, 2d ed., 1079, §8; Code of 
Criminal Procedure, §§791-813; N. Y. Cons., Art. I., §6. See Boyd v. 
U. S., 116 U. S. 616, on self-incrimination in connection with searches. 

13 P. V. McDonald, 177 N. Y. App. Div. 806 (1917). 

14 Cooley, Of. cit., 431, doubts the validity of warrants for preven- 
tive purposes. However, the N. Y. Code of Crim. Proc, § 792, is €X- 



304 FREEDOM OF SPEECH 

A man's privacy must not be invaded for the sole purpose 
of obtaining evidence against him, but only to obtain a dan- 
gerous instrument of past or future crimes. (2) The war- 
rant is to be issued by a judicial officer, after a showing made 
before him under oath that there is probable cause for sus- 
picion of a crime and the concealment of articles involved 
in it, which must be particularly described by the affidavit. 
(3) The magistrate must examine on oath the complainant 
and any witnesses he may produce, take written depositions 
subscribed by the witnesses, and satisfy himself that there 
is probable cause to believe the suspicion of crime is well 
founded. The suspicion itself is no ground for the warrant 
except as the facts justify it.^^ (4) The warrant must 
specify the place to be searched and the precise objects to 
be seized. Very great particularity is required, and not such 
blanket descriptions as " goods, wares and merchandises,'* 
or, as Entinck's case proved, " his books and papers." In 
other words, there must be a real exercise of discretion on 
the part of the judge or magistrate, and he must not be a 
mere rubber stamp for any government official who wants a 
hurry-up warrant to clean out somebody's house or office. 
(5) The warrant must command that the articles to be 
searched for be brought before the magistrate, to the end 
that, upon further examination into the facts, the goods, 
and the party in whose custody they were, may be disposed 
of according to law. And it is a fatal objection to such 
a warrant that it leaves the disposition of the articles to 
the searching officer, instead of enabling the judge to deter- 
mine by investigation the truth of the complaint made. The 
property must be delivered in conformity with the war- 

plicit. In some cases, preparation of the dangerous object might amount 
to a criminal attempt. 

isCooley, of. cit., 429; Code Cr. Proc, §§793ff.; Gaynor, J. (after- 
wards Mayor), in Matter of Blum, 9 Misc. 571 (1894), in nullifying 
a warrant of arrest issued on information and belief: " Human liberty 
was never so cheap as that under our law, ... It is important that 
crime should be punished, but far more important that arbitrary power 
should not be tolerated. The ' oath or affirmation ' required is of facts." 
Comfort V. Fulton, 39 Barb. 66 (1861), accord. 



WILKES AND HIS SUCCESSORS 305 

rant, together with a detailed written inventory.^® A hear- 
ing is then to be held, and if the grounds for the warrant 
fail, the property must be returned. (6) The magistrate 
must send the depositions, warrant, and inventory, to the 
court which has power to inquire through a grand jury into 
the offense in respect to which the warrant was issued. The 
New York statutes and decisions are explicit on all these 
matters, and make it a misdemeanor to procure a warrant 
maliciously and without probable cause, or for an officer to 
exceed his authority or exercise it with unnecessary sever- 

ity." 

Let us consider how these requirements were observed in 
the various raids. The first was against the Bureau of 
the Representative of the Russian Socialist Soviet Republic 
in the United States,^^ which had been established in April, 
1918, in the World Tower Building, by L. C. A. K. Martens, 
the as yet unrecognized " ambassador " of the Republic in the 
United States. An agent of the Committee made affidavit 
to a magistrate that he had picked up a typewritten docu- 
ment from the floor of the Bureau entitled " Groans from 
Omsk," apparently a call to the workingmen of Omsk to 
establish a Soviet form of government, and that the Bureau 
was " engaged in the distribution of literature calculated to 
stimulate revolutionary activities in this state." A search- 
warrant was then issued in blanket form authorizing the 
seizure of " All documents, circulars, and papers printed or 
typewritten, having to do with Socialist, Labor, Revolution- 
ary, or Bolshevik activities ; all books, letters, and papers 
pertaining to the activities of said Bureau, all circulars and 
literature of any sort, kind, or character ; " in the words 
of the Times, " practically everything that might be con- 
strued as documentary evidence in the place." These were 

16 Cooley, 431 ; Code Cr. Proc, §§ 797, 805 ff. 

IT Notes 12, 13, 15, 16, 19-20; Sanford v. Richardson, 176 N. Y. App. 
Div. 199 (1916). 

18 For a description of the Bureau's work, see American Labor Year- 
Book, 1919-20, 383-386. The raid is narrated in New York Times, June 
13, 1919, and following days. See Bibliography. 



306 FREEDOM OF SPEECH 

to be brought forthwith before the magistrate at his office. 
On June 12, 1919, a squad of the State Constabulary took 
possession of the Bureau, excluded all persons in charge, 
and ransacked every drawer and cabinet for papers and 
other material, even breaking open the cash-box. Hundreds 
of books and pamphlets, Martens's private bank books, and 
all letters and other documents in the files were taken away 
in disorder, including more than a thousand letters of Ameri- 
can business concerns relating to the shipment of merchandise 
to Russia. All these papers were taken on trucks, not to the 
magistrate, but to the office of the Lusk Committee in the 
Prince George Hotel, where it is charged that they were ex- 
amined not only by members of the Committee, but by an 
agent of the British Secret Service, who shortly afterwards 
departed for England with the information that he had ob- 
tained. It is, of course, well known that Great Britain may 
soon resume business relations with Russia. This charge is 
denied by the Committee, and the investigation proposed by 
the Socialist Assemblymen lapsed upon their expulsion. Let- 
ters taken from the Bureau were read into the record of the 
Lusk Committee, and disclosed to the press, besides the names 
of a large number of persons on the mailing list of the Bureau, 
although there was nothing to indicate that they were in any 
way connected with its work, or sympathized with its aims. 
None of this material was ever delivered to the magistrate who 
issued the search-warrant or steps taken to institute crim- 
inal proceedings. The seized papers and books were merely 
used as the ba^iis for the Committee's subsequent examina- 
tion of Martens and his associates, in order to prepare a 
report to the legislature and provide fire-eating material 
for the newspapers. 

The Appellate Division of the New York Supreme Court 
has declared : ^^ 

Under the broad provisions of the Fourth Amendment to the 
Federal Constitution and of our Bill of Rights, which is sub- 

i» Matter of Ehrich v. Root, 134- N. Y. App. Div. 432, 438 (1909). 



WILKES AND HIS SUCCESSORS 307 

stantially the same as that enacted in the other States of the 
Union, it has been held that the right to security of one's person, 
house, papers and effects against unreasonable searches and seiz- 
ures extends as well to letters and sealed packages, and prohibits 
searches for property other than those to aid in the adminis- 
tration of the criminal law. 

If it be urged that the Lusk Committee was acting to 
obtain evidence as the basis of a criminal prosecution against 
this Bureau and its affairs, the proceeding was still more 
invalid, because it would compel persons to give evidence 
against themselves contrary to the New York Constitution. 
That the legislature intended by a mere joint resolution 
to confer upon a committee " a power far in excess of that 
conferred upon any tribunal or official — a power so extreme 
as to be despotic in its character " is unthinkable. The same 
court has said that the right against unnecessary searches 
and seizures and the right against self-incrimination are 
" the complements of each other, directed against the dif- 
ferent ways by which a man's immunity from giving evi- 
dence against himself may be violated." ^° 

No inquisitorial officer should be permitted, of his own volition, 
arbitrarily and without any check or safeguards upon the rights 
of the citizen, to compel him to produce and submit to his 
scrutinizing gaze all his books and papers of the most private 
and confidential character. . . . Nor is it any answer to say that 
this examination is not sought in any criminal proceedings. In 
the absence of a full and complete statute of indemnity, a person 
should not be compelled, when acting as a witness in any in- 
vestigation, to give evidence which may tend to imperil his con- 
stitutional privilege. . . . Compulsory process to produce such 
papers, not in a judicial proceeding, but before a commissioner 
of inquiry is as subversive of " all the comforts of society " as 
their seizure under the general warrant. 

If any business man will consider what it would mean 
to have a number of men breaking into his oflBce with such 

20 Matter of Foster, 139 N. Y. App. Div. 769 (1910). See also Ex 
parte Clarke, 126 Cal. 235 (1899). 



308 FREEDOM OF SPEECH 

a blanket warrant and close his business for a day, turn 
all his letter files into confusion, and carry off some of his 
most important correspondence for disclosure to outsiders, 
he will see what is the possible result of encouraging lawless- 
ness of this kind. We are disposed to pardon raids of this 
sort because they are against radicals. We oughc to remem- 
ber that the same methods may be used by any other investi- 
gating committee, for instance, for the purpose of learning 
why prices are high, in which case they might be employed 
against any wholesale or retail establishment. 

The Lusk Committee next raided the Rand School, on 
East Fifteenth Street, near Fifth Avenue, a Socialist and 
Labor college, established in 1906, and having over 5,000 
registered students. Its methods are those of any other in- 
stitution of higher education, and its work is stated by its 
Director to fall into two parts, " that which offers oppor- 
tunities for the general public to study Socialism and related 
subjects, that which gives Socialists such systematic instruc- 
tion and training as may render them more efficient workers 
in and for the Socialist Party, the Trade Unions and the 
Co-operatives." ^^ It also conducts a large reference library 
and reading room, containing several thousand volumes, 
pamphlets, and periodicals, open to the public without 
charge, and a book store, doing a large mail-order business, 
chiefly, though by no means exclusively, in books and pam- 
phlets relating to social and labor questions. It is supported 
partly from this store and its moderate tuition fees and 
partly by private contributions. Except for the fact that 
its owner, the American Socialist Society, had been convicted 
under the Espionage Act for publishing Scott Nearing's 
Great Madness,'^'^ it had never come in conflict with the 
law. 

On June 21, agents of the Committee appeared with ten 

21 American Labor Year-Book 1919-20, pp. 206-8, 109-112. The raid 
is narrated in New York Times, June 22, 1919, and following days. 
See Bibliography. 

22 See Appendix II and page 27, supra. 



WILKES AND HIS SUCCESSORS 309 

state troopers and forty ex-members of the American Pro- 
tective League (now disbanded by the Department of Jus- 
tice), carrying another blanket warrant, authorizing the 
seizure of " All publications, documents, books, circulars, 
letters, typewritten or printed matter having to do with 
Anarchists, Socialists advocating violence, revolutionary or 
Bolshevist activities, and all books, letters, and papers per- 
taining to the activities or business carried on in said offices, 
and all circulars and letters of any sort, kind, or char- 
acter." This was obtained on affidavit that certain books 
and pamphlets which the informant purchased in the public 
book shop on the ground floor contained " revolutionary, 
seditious, and obscene statements." A number of the raiders 
carried arms. They proceeded to ransack all the rooms on 
the ground floor of the school and load the papers into 
trucks, which as before were not taken to the magistrate, 
but to the headquarters of the Lusk Committee. Two days 
later the raiders returned to the school with a new warrant 
obtained on affidavit that three persons had been heard to 
say at the school, " It is a good thing they haven't opened 
the big safe on the third floor." Safe experts were directed 
to driU a hole in the three-ton safe and open it. The raiders 
then removed all the correspondence, check stubs, accounts, 
and minutes of the meetings of the American Socialist So- 
ciety. The Director of the school drew the attention of 
the state troopers to the fact that these papers clearly fell 
outside the warrant. He replied, " Oh, that ain't what we're 
after. We want to get at the source of the financial support 
of the Rand School." The Committee, without having any 
one from the Rand School to explain the papers and the 
purposes of the school, immediately gave all kinds of pre- 
judicial reports to the press throughout the country. It 
will be recalled that the function of the Committee was to 
report to the Legislature. The Attorney General began an 
action to dissolve the charter of the Rand School, which 
was ignominiously dropped at the first sign of a fight. He 
could not even produce a prima facie case. 



310 FREEDOM OF SPEECH 

Mr. Samuel Untermeyer, who, though not a Socialist, 
undertook the school's case without pay, wrote to Senator 
Lusk : 

There is a library connected with the Rand School, which 
conducts also a book store for the sale of books and periodicals. 
Its printed catalogue, which I have now seen for the first time, 
embraces thousands of books, mainly classics and economics, 
among which, it appears, you have discovered one periodical and 
two or three books from which you have extracted and published 
occasional sentences containing discussions on birth control, revolu- 
tionary changes in government, and the like. You have de- 
liberately attempted to distort these few instances in the public 
prints so as to create the false impression that this is the general 
character of the teachings of the School, when in point of fact 
the School appears to be an educational institution of an unusually 
high order, with courses of studies taught by some of the most 
eminent professors in the country, most of them holding positions 
in the great universities of the country. 

The New York Public Library and probably every other great 
public library and book store has on its shelves hundred of books 
of the character you condemn to every one that the Rand book 
store or library contains. Why not seize their property and 
blow open their safes, under an improvidently granted warrant 
and try to close their doors? . . . You might with equal justifica- 
tion have raided any book store in New York City. 

These searches were illegal: (1) the affidavit stated no 
probable cause of use of the papers for crime, but only the 
court's rumors and suspicions of something objectionable; 
(2) the complainant was not examined by the magistrate, 
who took no pains to satisfy himself of a valid cause for 
search; (3) the warrant did not particularly state the arti- 
cles to be seized, but was as bad as that against Entinck, 
or worse ; (4) a large portion of the correspondence and other 
papers seized could not possibly be instruments of crime; 
(5) the papers were not taken to the magistrate; (6) the 
whole affair had no connection with any criminal proceed- 
ing, but was half legislative investigation and half advertis- 
ing- 
Massachusetts has a constitutional provision in its Bill of 



WILKES AND HIS SUCCESSORS 311 

Rights " like the federal Fourth Amendment, requiring the 
same particular description of the articles to be seized. Nev- 
ertheless, the district attorney of Middlesex County raided a 
book-bindery in Cambridge and carried off forty-five hundred 
red-bound copies of The Proletarian Revolution in Russia, 
by N. Lenine and Leon Trotsky, a collection of documents 
on recent events, by virtue of a warrant authorizing the 
seizure of obscene literature. In Boston, the police raided a 
Communist hall with a warrant setting up that firearms were 
illegally on the premises,^* but as the Boston Herald naively 
put it, " they had accurate information which made it pos- 
sible for them to seize the papers they sought almost as soon 
as they entered the hall." If they could seize papers on 
such a warrant, they could enter a house and take silver- 
ware. And this in the state where James Otis denounced 
general warrants as " the worst instrument of arbitrary 
power, the most destructive of English liberty and the fun- 
damental principles of law, that ever was found in an Eng- 
lish law book," since they placed " the liberty of every man 
in the hands of every petty officer." 

III. The Exclusion of Wilkes from the House of Commons 

Dr. Johnson : " Is there not a law, Sir, against exporting the 
current coin of the realm ? " 

Wilkes: "Yes, Sir: but might not the House of Commons, 
in case of real evident necessity, order our own current coin to 
be sent into our own colonies? " 

Dr. Johnson: " Sure, Sir, you don't think a resolution of the 
House of Commons equal to the law of the land? 

Wilkes: " God forbid. Sir." 

We now return to a second great principle established by 
Wilkes. The Grenville Government, which found him such 
an expensive opponent, brought an information against him 

23 Part First, Art. XIV. 3d District Court, E. Middlesex, No. 2972, 
Nov. 12, 1919. The court found there was no obscenity and the books 
were returned. 

^i Boston Herald, December 18, 1919; italics mine. Gun warrants are 
authorized by Mass. Laws, 1919, c. 179. 



312 FREEDOM OF SPEECH 

for seditious libel on account of what would now be con- 
sidered an ordinary political editorial. He was a member 
of the House of Commons. The House ordered the news- 
paper to be burned by the common hangman and summoned 
Wilkes to attend for further proceedings. Meanwhile the 
government encouraged bullies to make way with him. 
Forced into a duel, he fled to France. Evidence was taken 
of his being the author and publisher of the North Briton, 
No. 45, and he was expelled for the seditious libel published 
during his term as member of Parliament. May considers 
that this expulsion was legal, but precipitate and vindictive, 
for Wilkes was about to be tried for his offense, and the 
House might at least have waited for his conviction, instead 
of prejudging his cause and anticipating his legal punish- 
ment.^® Later he was convicted in his absence, and outlawed 
for contumacy. 

Four years went by, the general election of 1768 was 
approaching, and he returned from exile to stand for Par- 
liament. After a defeat in the City of London, he presented 
himself as a candidate for Middlesex. The working people 
allowed no man to travel to the polls without a paper in his 
hat inscribed, " Number 45. Wilkes and Liberty ! " Con- 
vict and outlaw as Wilkes was, his vote was overwhelming. 

After his election, Wilkes surrendered himself into cus- 
tody, and went to jail. Lord Mansfield reversed the out- 
lawry, and Wilkes was sentenced, on the original charge of 
seditious libel, to nearly two years in prison. Obviously, the 
King should have pardoned him. His sentence was unwar- 
ranted, and its remission would have relegated him, as 
Trevelyan puts it, " to an obscurity whence, but for the in- 
fatuation of his enemies, he would never have emerged." A 
feeble speaker, he would have been negligible; in the words 
of Junius, " a silent senator, and hardly supporting the elo- 
quence of a weekly newspaper." But the King and the 
Cabinet were his implacable enemies and he was left in 
prison. And, then going back forty years to the precedent 

25 1 May, Constitutional History, 312. 



WILKES AND HIS SUCCESSORS 313 

of a member who had been expelled for forgery, the House 
of Commons declared Wilkes's seat to be vacant by a vote 
of two hundred and nineteen to one hundred and thirty- 
seven. 

A new election was held, and though still in prison, he was 
re-elected. The House next day voted that, having been 
expelled, he was incapable of serving in Parliament. A third 
election followed with the same result. Burke told his fellow 
members that Wilkes had grown great by their folly, and 
Townshend reminded his hearers " that a heavy account 
would some day be exacted from them if they continued to 
postpone all useful legislation for the sake of a frivolous 
and interminable squabble." But the election was declared 
null and void without a division. An opponent was produced 
for the fourth election in one Luttrell, who drew one vote 
to Wilkes's four, but was declared by the House of Com- 
mons to be member for Middlesex, after a debate in which 
even George Grenville rallied to the support of his old enemy, 
Wilkes, with such vehemence that when he sat down he spat 
blood, shortening his life to diminish the majority against 
the lawfully elected candidate. Blackstone tried to show 
that Wilkes was disqualified by common law, but was con- 
futed by a passage in the early editions of his Commentaries, 
which he carefully altered in the edition of 1773 and which 
said that every British subject not in certain specified classes 
was " eligible of common right." The majority was forced to 
rely on precedents from the Great Civil War, when the ma- 
jority expelled the minority and was itself expelled in turn, 
until the House of Commons was reduced to forty-six mem- 
bers. Luttrell's election was confirmed, against the petition 
of the Middlesex electors, and the King prorogued Parlia- 
ment. 

Burke expounded the principle involved in Wilkes's exclu- 
sion in his Thoughts on the Present Discontents. The only 
check on arbitrary power is the presence here and there on 
the benches of members endowed with a " spirit of independ- 
ence carried to some degree of enthusiasm, an inquisitive 



314 FREEDOM OF SPEECH 

character to discover, and a bold one to display, every cor- 
ruption and every error of government." Such qualities are 
distasteful to those in power, and Wilkes was the example 
chosen to discourage others, just as the arrest of five mem- 
bers by Charles I, if successfully conducted, would have 
stifled liberty as effectually as the execution of fifty. The 
question was whether the people or the government should 
select the legislature. The leading Whigs stood behind 
Burke, and denounced the position, that a resolution of any 
branch of the legislature could " make, alter, suspend, abro- 
gate, or annihilate the law of the land." 

Of all the statements of the cause of Wilkes, that of 
Burke in debate has the greatest value for our own 
time: 

Accumulative crimes are things unknown to the courts below. 
In those courts two bad things will not make one capital offense. 
This is a serving up like cooks. Some will eat of one dish, and 
some of another, so that there will not be a fragment left. Some 
will like the strong solid roast-beef of the blasphemous libel. One 
honorable member could not bear to see Christianity abused, 
because it was part of the common law of England. This is 
substantial roast-beef reasoning. One gentleman said he meant 
Mr. Wilkes's petition to be the ground of expulsion ; another, the 
message from the House of Lords. " I come into this resolution," 
says a fourth, " because of his censure upon the conduct of a great 
magistrate." " In times of danger," says a fifth, " I am afraid of 
doing anything that will shake the government." These charges 
are all brought together to form an accumulated offense, which 
may extend to the expulsion of every other member of this House. 
This law, as it is now laid down, is that any member who, at any 
time, has been guilty of writing a libel will never be free from 
punishment. Is any man, when he takes up his pen, certain that 
the day may not come when he may wish to be a member of 
Parliament? This, sir, will put a last hand to the liberty of the 
press. 

It was not until his fourth election had been annulled that 
Wilkes left prison. The persecution of the government had 
turned him from an obscure member of Parliament into a 
man of national prominence. As Junius said, " The rays 



WILKES AND HIS SUCCESSORS 315 

of the Royal indignation, collected upon him, served only to 
illuminate, and could not consume." The people, unable to 
send him to Parliament, made him Alderman and then Lord 
Mayor of London, while Luttrell voted with the majority in 
the Commons. At the next general election in 1774, he was 
returned for Middlesex and allowed to take his seat, since 
Massachusetts was causing too much trouble to encourage a 
stirring up of old grievances at home. Thereafter, he sat 
without interruption, while the men who had expelled him 
brought the nation into its lowest humiliation. In 1782 
the resolution of 1769 declaring him incapable of election 
was expunged from the records " as being subversive of the 
rights of the whole body of electors of this kingdom." 

IV. The Exclusion of Victor L. Berger from the 
House of Representatives 

The most prominent person convicted under the Espio- 
nage Act, with the exception of Debs, was Victor L. Berger. 
He was born in Austria in 1860, came to this country in 
1878, and was a founder of the Socialist Party in the United 
States, editor of the Milwaukee Leader, and member of Con- 
gress, 1911-1913, the first Socialist to serve in Washington. 
The left-wing Socialists have always regarded him as a 
bourgeois member of the party. Before we entered the Eu- 
ropean War, he gave vigorous expression to the orthodox 
Socialist views about war, and employed many of the argu- 
ments in favor of American neutrality which were used at 
that time by non-Socialists, for instance, in the key-note 
speech of Governor Glynn at the Democratic National Con- 
vention of 1916 and in the President's note of December 18, 
1916, to all the belligerents, asking them to state their terms 
of peace. Unlike the great majority of Americans, Berger 
and other Socialists did not consider the German submarine 
campaign of February, 1917, a sufficient reason for changing 
their minds, but maintained that war was justified only in 
case of invasion. He was a member of the resolutions com- 



316 FREEDOM OF SPEECH 

mittee of the Socialist Convention at St. Louis and signed 
the Proclamation and War Program of April 14<, 1917, 
which has already been mentioned.^* It branded the declara- 
tion of war as a crime against the people of the United 
States and the nations of the world, and stated that in all 
modern history there had been no war more unjustifiable. 
Mr. Roosevelt called these planks " treason to the United 
States." ^^ Berger published this platform in the Milwaukee 
Leader, and poured out a stream of editorials, articles, and 
cartoons, denouncing the war policies of the government. 
He did not, however, urge any one to resist the draft, and 
indeed advised one Socialist conscientious objector to put on 
the uniform. Berger testified that several men in his im- 
mediate family volunteered, although his opposition would 
have prevented them from doing so. It is, of course, well 
known that the record of Wisconsin and Milwaukee in the 
war was very high, and while Berger can take no credit for 
this, it tends to disprove that opposition to war produces 
violations of the draft act or other war laws.^® 

In September, 1917, the Leader was deprived of its 
second-class mailing privilege for the future by a blanket 
order of the Postmaster General, and relief was subsequently 
denied by the courts. ^^ The newspaper thus lost a daily cir- 
culation of approximately 15,000 subscribers. All first- 
class mail addressed to the Leader was returned to the 
sender. The District of Columbia Court of Appeals said 
of the articles on which the exclusion was based, and in this 
opinion the House of Representatives committee afterwards 
concurred : 

No one can read them without becoming convinced that they 
were printed in a spirit of hostility to our own government and 
in a spirit of sympathy for the Central Powers; that through 

26 P. 162, supra. 
2T Berger Hearings, I, 72. 
^slbid., II, 460; I, 323; I, 166. 

29 U. S. ex. rel. Milwaukee Social Democrat Pub. Co. v. Burleson, 
258 Fed. 282 (1919). The full record is in Berger Hearings, I, 603 flF. 



WILKES AND HIS SUCCESSORS 317 

them, appellant sought to hinder and embarrass the government 
in the prosecution of the war. 

The reader can determine the general character of the 
Milwaukee Leader from the passages abstracted in a later 
paragraph, and decide for himself whether the judicial and 
legislative comments quoted in this chapter are correct in 
concluding that Berger wanted to aid Germany. My own 
opinion is that they err in confusing opposition to the war 
with wishing the enemy to win. Whether Berger was within 
the terms of the Espionage Act or not, I find in his writings 
no desire that the militarism and autocracy of Germany 
should triumph, but rather a series of extremely bitter and 
cynical attacks upon what seemed to him the Junkerism and 
selfishness of all the governments on both sides of the war. 
They indicate that he wanted the war to end at once because 
in the absence of invasion he sincerely believed it unnecessary 
and a crushing burden upon the workers of America. I say 
this although I thoroughly detest the attitude of Berger. 
I can understand the abhorrence of Debs for a law which 
compels a man to kill fellow-workers because their rulers 
quarrel, and recognize that he speaks from the heart even 
while I disagree with him. But for Berger the war seems 
only an impersonal step in an economic argument. His is 
not the position of the man who has weighed the good and 
bad reasons and motives which are inextricably mingled in 
war as in most human actions, and finding that the bad 
outweigh the good, calls for peace despite the ideals which 
he recognizes behind the war. Berger ignores the good, and 
sets forth only meanness. He sneers at the possibility of 
noble purposes in the conflict, and nowhere utters a word of 
praise or sympathy for those who gave up home and life 
with the desire that the world should not be made an armed 
camp and that oppressed nations should be free from mili- 
tary domination. 

Despite all this, the fundamental question remains, 
whether it is for the advantage of government by public 
opinion and popular election that just because most of us 



318 FREEDOM OF SPEECH 

consider a person's views detestable, he should be thrown 
into prison and American citizens should be denied the right 
to be represented by the man of their choice. 

In February, 1918, Berger was indicted with four other 
Socialists for conspiracy under the Espionage Act. The 
indictment was brought in Chicago, because the defendants 
were alleged to have agreed there for the issue of publica- 
tions in various places. The overt acts which Berger him- 
self was said to have committed consisted of five editorials 
in the Leader, which were in substance as follows: (1) We 
were in the war because the Allies were at the end of their 
rope, and their obligations would otherwise be worthless ; 
continued fighting would maintain the existing high prices 
of munition stocks ; war meant absolute freedom from labor 
troubles, since strikes would be put down as treason ; the 
plutocracy and its government in Washington would be 
enabled to establish autocracy as a war necessity ; war would 
be a wonderful chance to establish a large permanent army ; 
the commercial rivalry of Germany would be ended. The 
submarines, Belgium, invasion, and democracy had nothing 
to do with it. (2) There are many men driven insane at 
the front. (3) Young men do not talk as if they consid- 
ered it an honor to be drafted. (4) Only big business men 
and their satellites are enthusiastic over the war, but they do 
not fight. (5) The Bible contains many passages which are 
opposed to war and must therefore be considered as treason- 
able. 

Shortly before the indictment, Berger was nominated for 
the United States Senate on a Socialist platform announcing 
that if elected he would work for a speedy, general, demo- 
cratic, and permanent peace without forcible annexations 
and punitive indemnities ; an immediate armistice and peace 
conference ; the withdrawal of American troops from Europe 
and their use to secure this country from invasion ; confisca- 
tion of war profits ; and safeguards to prevent panic or un- 
employment when demobilization should take place. War 
would ruin the country and could be ended by electing men 



WILKES AND HIS SUCCESSORS 319 

pledged to end it.^° He was defeated, but in spite of the 
charges pending against him received over 100,000 votes. 

In November, 1918, before the trial began, he was elected 
to Congress from the fifth district of Wisconsin, polling 
17,920 votes against 12,450 for the Democratic candidate 
and 10,678 for the Republican. In December, he was put 
on trial before Judge Kenesaw Mountain Landis, who sev- 
eral years ago imposed a fine of $29,000,000 on the Standard 
Oil Company, which was afterwards set aside. Judge Landis 
sentenced Berger and the other defendants to twenty years 
imprisonment. An appeal to the Circuit Court of Appeals 
is still pending, and the defendants were released on bail.^^ 

When Berger presented himself to the House of Represen- 
tatives to be sworn in, it was charged that he was ineligible, 
and the question was referred to a special committee, which 
reported ^^ for reasons hereafter stated that he was not 
entitled to take the oath of office or hold a seat as Rep- 
resentative. At the same time the candidate with the next 
highest number of votes, Joseph P. Carney, had claimed the 
seat, on the ground that since Berger was ineligible those 
persons who had voted for him should be considered to have 
deliberately thrown away their ballots — in the words of an 
English judge, just as if they had voted " for the man in 
the moon." ^^ Although this is the English law, and a Wis- 
consin decision had reached the same result where the lead- 
ing candidate was known at the time of the election to be 
dead,^* the Congressional practice is otherwise, and holds 

30 Berger Hearings, I, 340, 

31 Volume II of Berger Hearings contains the t'uU record of the 
trial. The charge is also in Bull. Dept. Just., No. 186. Comment from 
the Socialist side is in American Labor Year-Book, 1919-20, pp. 97-100, 
and the Socialist Review, February, 1920. O'Brian speaks of " the dig- 
nity and fairness " which characterized the work of the court. 62 Rep. 
N. Y. Bar Assn. 310 (1919). 

32 House of Representatives, 66th Cong., 1st Sess., Ho. Cal. No. 91, 
Rep, No. 413, hereafter called Berger Report. 

33 Lord Campbell, C, J., in Regina v. Coaks, 3 E. & B. 249, 254 
(1854). 

84 Beresford-Hope v. Lady Sandhurst, 23 Q. B. D, 79 (1889), Women 
were allowed to vote for County Councillor and were supposed to 
be eligible to hold the oflSce. The highest candidate was a woman. The 



320 FREEDOM OF SPEECH 

that electors ought not to be disfranchised in such a fashion, 
especially when they supposed the leading candidate to be 
eligible. ^^ It would be absurdly harsh to presume that those 
who voted for Berger in November knew that he was dis- 
quahfied, just because a jury convicted him the following 
January. Consequently, Carney gained nothing by his con- 
test, but on November 11, 1919, the House of Representa- 
tives with only one dissenting member, Voigt of Wisconsin, 
declared Berger's seat vacant.^® 

The Governor of Wisconsin ordered a special election on 
December 19, 1919. The Repubhcans and Democrats nomi- 
nated a fusion candidate, H. H. Bodenstab, and the German 
paper, the Herold, appealed to all German-Americans to 
support their compatriot against Berger. The Socialist vote 
was increased by nearly 8,000 over the first election, Berger 
receiving 25,802 ballots to 19,800 for his opponent. On 
January 10, 1920, the House again refused to seat him. 
This time, six Representatives voted in his favor, including 
Floor Manager James R. Mann, who said during the debate : 

Mr. Berger has been elected anew to the House by a majority 
of those who vote in his district and to me the question is 
whether we shall maintain inviolate the representative form of 
government where people who desire changes in the fundamental 
or other laws of the land shall have the right to be represented 
on the floor of this House, when they control a majority of the 
votes in a Congressional district. 

I do not share the views of Mr. Berger, but I am willing to meet 
his views in an argument before the people rather than to say 
we shall deny him the opportunity to be heard when selected 
by the people in the legal form and invite them, in effect, to 
resort to violence. 

Has it come to the point that a man who believes certain things 
cannot be heard? His people, his constituents, desire him to 
represent them. It is not our duty to select a representative from 

court seated the highest male candidate. State ex rel. Bancroft v. 
Frear, 144 Wis. 79 (1910). 

35 Smith V. Brown, 1 Hinds' Precedents 448; Re Abbott, 1 ibid. 
478. Accord, P. ex rel. Furman v. Clute, 50 N. Y. 451 (1872). 

36 The debates on the two exclusions are in New York Times, No- 
vember 12, 1919, January 11, 1920. 



WILKES AND HIS SUCCESSORS 321 

I 
this Congressional district. That is the duty of the people back 
at home. We cannot take the attitude of refusing to permit 
the voice of the people of a district to be heard by their own 
selection with safety to the future of the country. 

Berger afterwards stated that he was accused of calling 
the late war a capitalist war, and that the President had 
said the same thing at St. Louis on September 5, 1919, when 
he declared: 

Why, my fellow citizens, is there any man here or woman who 
does not know that the seed of war in the modern world is 
industrial and commercial rivalry? This war was a commercial 
and industrial war. It was not a political war. 

Within an hour after Berger was unseated, the Socialist 
committee in Milwaukee announced his renomination for a 
third contest. However, he has not yet equalled the record 
of Wilkes, for the Governor of Wisconsin has decided that 
another special election would be too expensive. Meanwhile, 
Berger has been forbidden to speak in several cities, includ- 
ing that founded by Roger Williams, and Jersey City for- 
cibly ran him out of town. Whatever the legal merits of 
his case in the courts and Congress, his enemies like those of 
Wilkes have adopted against him the very methods that 
vastly increase his influence. 

The question whether a person who is duly elected to 
either branch of Congress is rendered ineligible because dur- 
ing a war he expressed opinions opposed to its continuance 
and the methods by which it was waged is full of difficulties. 
It is sometimes supposed that the clause in the Constitu- 
tion,^^ " Each House shall be the Judge of the Elections, 
Returns, and QualilScations of its own Members," gives a 
majority the unlimited right to exclude any one. The prob- 
lem is less simple than that. Each house is to act as 

8T U. S. Cons., Art. 1, § 5. That this a judicial proceeding, to be 
decided in accordance with legal principles as established by precedents, 
cases of Abbott, 1 Hinds' Prec. 478; Lorimer, in Webb and Pierce, 
Senate Election Cases, 1061; and page 340, infra. 



322 FREEDOM OF SPEECH 

" judge," that is, it must decide the facts by applying to 
them rules of law, and must not proceed arbitrarily. For 
instance, the majority has no right to exclude the minority 
by a new Pride's Purge. It is undoubtedly true that if the 
House of Representatives should exclude a man on some 
whimsical ground, no appeal would lie from its action. 
Neither is there any appeal from the Supreme Court, but 
for this very reason it feels a grave responsibility to decide 
according to law. In the same way, the House has only the 
power to decide whether the man received the proper number 
of votes and satisfies the qualifications established by law, 
and it ought not to create new requirements for a particular 
case any more than a criminal judge ought to invent new 
crimes. 

What then are the lawful qualifications for membership 
in the House of Representatives.? The authorities disclose 
two divergent views. The first is, that the Constitution con- 
tains all the qualifications, and that if a district elects a man 
who conforms to its requirements, he must be seated, no 
matter how unfit he is considered by the rest of the House. 
His unfitness is not a reason for exclusion by a majority 
vote, but may if continuing in character justify his expul- 
sion by a two-thirds vote. The second view holds that addi- 
tional tests may be imposed by statute or possibly in accord- 
ance with established usage to cover obvious cases of unfit- 
ness, such as conviction of crime. Since the committee report 
in the Berger case held that he should be unseated, even 
under the first view, we can postpone the controversy 
whether his conviction was a bar, until after discussing his 
eligibility under the terms of the Constitution. 

The original requirements are threefold : ^® 

No Person shall be a Representative who shall not have attained 
to the Age of twenty-five Years, and been seven Years a Citizen 
of the United States, and who shall not, when elected, be an 
Inhabitant of that State in which he shall be chosen. 

38 U, S. Cons., Art. I, § 2, 



WILKES AND HIS SUCCESSORS 323 

Berger satisfied all these. However, the committee reported 
that he was excluded by a fourth qualification, enacted in 
1868 by section 3 of the Fourteenth Amendment: 

No person shall be a Senator or Representative in Congress, 
or elector of President and Vice President, or hold any office, 
civil or military, under the United States, or under any State, 
who, having previously taken an oath, as a member of Congress, 
or as an officer of the United States, or as a member of any State 
legislature, or as an executive or judicial officer of any State, 
to support the Constitution of the United States, shall have 
engaged in insurrection or rebellion against the same, or given aid 
or comfort to the enemies thereof. But Congress may by a vote of 
two-thirds of each House, remove such disability. 

At the outset the committee decided not to be governed 
by the action of the judge and jury at Chicago, but to re- 
view all the evidence at that trial, the proceedings about the 
exclusion of the Leader from the mails, and the fresh testi- 
mony introduced at the hearings. The conclusions of fact 
were as follows : ^^ 

After a careful consideration of all the evidence, in the opinion 
of your committee the admitted acts, writings, and declarations 
of Victor L. Berger and of the men with whom he was associated 
in the management and control of the Socialist Party from the 
time of the entrance of this country into the war until their 
indictment by a Federal grand jury, giving such acts and the 
language of the writings and declarations their ordinary everyday 
meaning and without considering any other evidence, clearly 
establishes a conscious, deliberate and continuing purpose and 
intent to obstruct, hinder, and embarrass the Government of the 
United States in the prosecution of the war and thus to give aid 
and comfort to the enemies of our country. The writings and 
activities of Mr. Berger and his associates could have had no other 
purpose. That Victor L. Berger was disloyal to the United States 
of America and did give aid and comfort to its enemies at a time 
when its existence as a free and independent Nation was at stake 
there can not be the slightest doubt. 

Even if Berger's guilt under the Espionage Act be con- 
sidered as established, three replies are conceivable to the 

89 Berger Report, 7. 



324 FREEDOM OF SPEECH 

proposition that such guilt renders him ineligible under the 
Fourteenth Amendment. (1) This provision may relate to 
the Civil War only, like section 4 of the same Amendment 
about pensions and Confederate debts. Since section 1, for- 
bidding states to deprive citizens of the United States of life, 
liberty, or property without due process of law, has been 
construed to protect much more than the rights of eman- 
cipated slaves, the committee rejected this argument. (2) 
Early in the Spanish War, in order to cement good feeling 
between North and South, both houses by the necessary two- 
thirds vote adopted a blanket resolution, " that the disa- 
bility imposed by section three . . . heretofore incurred is 
hereby removed." *° The committee held that this could not 
apply to a subsequent disability. (3) Berger's violation of 
the Espionage Act was not a bar under the Fourteenth 
Amendment because it did not amount to treason. This is a 
very important point and it is an odd commentary on legis- 
lative justice that every one involved in the Berger case, 
except Representative Mann, overlooked it completely and 
assumed that " aid and comfort to the enem}' " was synony- 
mous with guilt under the Espionage Act. Of course, this 
phrase is often employed loosely in conversation and Con- 
gressional debates to include all sorts of language that is 
considered disloyal in war time, but legally these words have 
a technical significance, and they are used in a statute or 
in the Fourteenth Amendment in the same sense as in the 
clause of the Constitution defining treason.*^ Therefore, the 

40 Act, June 6, 1898, c. 389. 

41 Art. Ill, § 3: " Treason against the United States, shall consist 
only in levying War against them, or in adhering to their Enemies, 
giving them Aid and Comfort." The omission of any mention of ad- 
herence in the Fourteenth Amendment is immaterial. Judge Leavitt 
said in 1861 (1 Bond 611): "The words in the definition, adhering to 
their enemies, seem to have no special significance, as the substance is 
found in the words which follow — giving them aid and comfort." Judge 
Learned Hand said in U. S. v. Robinson, 259 Fed. 685, 690 (1919): 
" The words ' adhering ' must be taken as defined by the phrase ' giving 
aid and comfort.' " The U. S. Supreme Court has reached the same 
result in construing the Captured and Abandoned Property Act of 
March 12, 1863 (12 Stat. L. 820), which allowed the owner of any cap- 
tured property to reclaim its value from the United States, on proof 



WILKES AND HIS SUCCESSORS 325 

acts of aid and comfort which would disqualify Berger from 
serving in Congress under the Amendment (if section three 
is still in force) must be of the same general character with 
those necessary to convict him of treason. 

Was Berger guilty of treason? In answering this ques- 
tion, we must not be misled by colloquial usage. Mr. Roose- 
velt denounced the St. Louis Socialist platform as " trea- 
son," and " traitor " is a heart-warming conversational epi- 
thet for any one who wants a war stopped, but lawyers and 
legislators must be less vague in accusing a man of a crime 
that is punishable with death. Chief Justice Marshall said 
long ago *^ that treason should not be extended by construc- 
tion to doubtful cases, and there has never been a decision 
that talking against a war is treason. If it were, Vallan- 
digham, Milligan, and the other Copperheads would surely 
have been prosecuted for this crime. The few writers *' who 
assert that the Espionage Act of 1917 created no new crimes, 
but that causing insubordination in the armed forces and ob- 
structing enlistment are also treason,^* are forced to rely on 
one or two sweeping judicial definitions, like Lord Reading's 
charge in the trial of Sir Roger Casement, that it is giving 
aid and comfort to the enemy to do any act which tends 
to strengthen them or tends to weaken the power of one's 
own country to resist.^^ So broad a statement would if taken 

that he had "never given aid or comfort to the present rebellion." 
In Young v. U. S., 97 U. S. 39, 62 (1877), the Court held, through 
Chief Justice Waite, that although a British claimant could not commit 
treason since he owed no allegiance, " the acts of aid and comfort 
which will defeat a suit must be of the same general character with 
those necessary to convict of treason. ... It is sufficient if he has 
done that which would have made him a traitor if he had owed al- 
legiance to the United States." 

i2Ex parte Bollman and Swartwout, 4 Cranch 77, 127 (1807). 

43 Charles Warren, " What Is Giving Aid and Comfort to the 
Enemy," 27 Y. L. J. 331 (1918); Thomas F. Carroll, 17 Mich. L. Rev, 
660 (1918). 

4* If so, the treason statute would have rendered the Espionage Act 
unnecessary. Instead the treason statute proved well-nigh useless during 
the war. See p. 41, supra. 

45 Rex V. Casement [1917], 1 K. B. 98, 133. Warren, op cit., quotes 
other judges. They plainly refer to language used to cause men to 
join the enemy and participate in his operations. Such words form an 



326 FREEDOM OF SPEECH 

literally revive all the evils of constructive treason, but it 
must be limited with reference to the particular facts which 
the jury were considering. Casement had issued a procla- 
mation to Irish prisoners in Germany urging them to form 
a regiment in the German army.*^ The use of words in an 
attempt to gain recruits for the enemy is absolutely dif- 
ferent from telling your fellow-citizens that they ought to 
stop fighting. It may be that the latter is so dangerous 
that it must be punished, but only as sedition, which con- 
sists of words creating disaffection. Treason requires overt 
acts of direct assistance to the enemy. The distinction is 
fundamental. It is inconceivable that the trivial utterances 
which were held criminal under the Espionage Act because of 
their bad tendency and the supposed intention to hinder the 
war were already subject under the treason statute to a 
death penalty. 

This distinction is clearly brought out by the kind of 
conduct which has been held to be " giving aid and comfort 
to the enemy," ^^ for example, furnishing money, troops or 
arms, saltpeter for gunpowder, steamers for blockade run- 
ning, delivering up deserters and prisoners, and actually 
joining the enemy in person. Contrast these acts, 
which advance the cause of the enemy by their immediate 
effect, with newspaper articles attacking the war, which may 
encourage the enemy but do not promote his success in any 

element in acts of direct aid. These judges are not speaking of ex- 
pressions of opinion about the injustice of a war, even if intended to 
deter men from enlisting in one's own army. Cf. note 49. 

46 It is doubtful if even this would be treason in this country, inas- 
much as no one was persuaded to enlist. Respublica v. Roberts, 1 Dall. 
39 (Pa. 1778). But see U. S. v. Robinson, 259 Fed. 685, 690, on un- 
successful attempts to aid. This point in the Casement trial received 
no attention from the Court of Appeal, which was entirely occupied 
with the question whether treason could be committed outside England, 
answered in the afBrmative. It is interesting to Americans to find 
that one of the authorities relied on was a legal opinion rendered in 
1775 that certain persons in New Hampshire could be prosecuted for 
treason. „ , 

47 Carlisle v. U. S., 16 Wall. 147 (1872); U. S. v. Fricke, 259 Fed. 
673 (1919); Young v. U. S., 97 U. S. 39 (1878); U. S. v. Hodges, 2 
Wheel. Cr. 477 (1815); King v. Ahlers [1915] 1 K. B. 616. For other 
examples see Warren, op. cit., especially on p. 347 a. 



WILKES AND HIS SUCCESSORS 327 

tangible or measurable way. The result is indirect and 
purely mental. It is true that words do sometimes consti- 
tute treason, as when a letter is sent to the enemy containing 
military information, or even a wireless message.*^ Here lan- 
guage has all the qualities of action, because it furnishes the 
enemy with something he can use. It is treason if he be 
given a gun to batter down a fort or a photograph of its 
plan or a written description. That the last is in words is 
immaterial. But if words are used in a speech demanding 
immediate peace, this is not assistance by acts at all, and 
furnishes the enemy with nothing but emotions of dubious 
value. Judges have frequently declared that expressions of 
opinion are not treason."*^ It is interesting to note that even 
in the excitement of the Civil War, when Congress was pass- 
ing on the qualifications of members under the much broader 
terms of the Test Oath Act of 1862, soon to be more fully 
discussed, a line was usually (though not always) drawn 
between language adverse to the North, even though clearly 
intended to embarrass the conduct of the war, and definite 
acts of assistance to the South, such as participatioii in an 
ordinance of secession or the offer of a military invention to 
Jefferson Davis. In the Berger case, however, the committee 
did not consider at all whether he was guilty of acts of treason. 
There is nothing in the record to show any aid to Germany 
except by the indirect, intangible method of creating a body 
of opinion opposed to the continuance of the war. And this 
is a risk which a nation governed by public opinion must 
take, which ours has taken by guarantying freedom of speech. 
To call it treason is contrary not only to the First Amend- 
ment but to the law of treason. Therefore, Berger did not 
in any legal sense give aid and comfort to the enemy, and 

48 U. S. V. Robinson, 259 Fed. 685 (1919) (invisible ink); U. S. v. 
Werner, 247 Fed. 708. See Warren, op. cit. 

49 Charges to Grand Jury, 5 Blatchf. 649, 550 (1861): "Words, 
oral, written, or printed, however treasonable, seditious or criminal of 
themselves, do not constitute an overt act of treason within the defini- 
tion of the crime"; accord, 1 Bond 609, 612 (1861); 2 Sprague 292, 
294 (1863). 



328 FREEDOM OF SPEECH 

he was not barred from the House of Representatives by the 
Fourteenth Amendment. 

Consequently, if Berger's exclusion is to be justified, it 
can only be on the second theory already mentioned, that the 
House of Representatives had power to impose qualifications 
not mentioned in the Constitution. The instances of addi- 
tional qualifications mentioned in the Berger Report were 
imposed by statutes like the Test Oath Act of 1862 or the 
Edmunds Act abolishing polygamy. No such statute ap- 
plies to Berger, so that he could only be barred if additional 
requirements can be based on unwritten law or the will of a 
single branch of the legislature. This question will be exam- 
ined at length in connection with the New York Socialists. 
It will be seen that there is some authority that a man who 
has been convicted of crime after his election to the legisla- 
ture should not be allowed to occupy his seat, but that there 
is a sharp disagreement whether he should be excluded or 
expelled.^" The reason for declaring the seat vacant is that 
his constituents should have the opportunity to reconsider 
their votes if they were cast in ignorance of a fact which so 
materially affects his fitness for the office. This argument 
supports the first exclusion of Berger, but not the second, for 
the overwhelming vote received by him at the second election, 
after his conviction, made it clear that the electorate consid- 
ered guilt under the Espionage Act no disqualification for 
their representative in Congress. The Wilkes case estab- 
lished the principle that such a decisive expression of opinion 
given with full knowledge of the offense of sedition should not 
afterwards be overridden by one branch of the legislature. 
Indeed, the House of Representatives went one step farther 
than the House of Commons, for Wilkes when disqualified 
was in prison and wholly incapable of serving, but Berger 
was out on bail pending an appeal. His conviction might be 
reversed and he was capable of taking his seat. An Ameri- 

50 See p. 344, infra. Berger Report, p. 10, says that the power of 
expulsion is limited to causes arising out of the conduct of a member 
after his induction into oflSce. 



WILKES AND HIS SUCCESSORS 329 

can precedent is Matthew Lyon, who was elected to Congress 
by voters who had full knowledge of his prosecution under 
the Sedition Act of 1798. He was allowed to qualify, and 
when he was subsequently convicted and imprisoned the 
House of Representatives by a close vote refused to expel 
him.^^ The Wilkes and Lyon cases are opposed to the belief 
of some persons that sedition is more of a disqualification 
than other crimes because it involves a breach of allegiance. 
On the contrary, the opinion of the voters about a conviction 
for a political crime is entitled to peculiar respect. Such 
crimes do not usually arise from an individual malevolence, 
as do murder and robbery, but from political, economic, or 
ethical views which are shared by a group, for instance, of 
pacifists or Socialists, and which are considered dangerous 
because they clash with the will of the majority. The elec- 
tion of such a criminal is in effect an approval of these views 
by the voters of his district, so that the legislature by ex- 
cluding or expelling him denies expression to a political, eco- 
nomic, or ethical theory which is held by a considerable mass 
of the electorate. The tide of public opinion with regard to 
disloyal utterances is very likely to vary with time and 
locality. The penalty affixed by the statute sufficiently 
guards against their dangerous consequences in the emer- 
gency of war. If an additional penalty not included in the 
law is imposed by one branch of the legislature after hostili- 
ties have ceased, the result is to block changes in public 
opinion, whereas the theory of democratic government is that 
such changes shall find an immediate and ready expression 
through the ballot, 

Lincoln's principle ^^ that the nation must be able to pro- 
tect itself in war against utterances which actually cause 
insubordination and obstruct the raising of armies may 
justify some of the Espionage Act convictions, but his policy 
was absolutely opposed to the annexation of political dis- 
qualifications when the emergency had passed. Berger's 
utterances were far less dangerous in their tendency 
512 Hinds' Precedents 850. 52 p. 117, supra. 



330 FREEDOM OF SPEECH 

than those expressed by many persons who took office un- 
molested during the Civil War. A large number of Demo- 
crats were elected to Congress in 1864 on a platform drafted 
by the notorious Vallandigham, which declared the war a 
failure.^^ The reasoning of the Berger committee would have 
allowed the Republican majority in Congress to exclude the 
Democratic minority. Apart from the fact of conviction, 
the conduct of these men furnishes a close analogy to Ber- 
ger, much closer than the persons excluded under the Test 
Oath Act, most of whom had committed treason, while a 
few others came from Border States and had definitely iden- 
tified themselves with the South. The Mexican War af- 
fords more honorable precedents for the principle that men 
who oppose a war in public discussion should afterwards 
be sworn in at the National Capitol without question. Daniel 
Webster said at a public meeting in 1847 : " We are, in my 
opinion, in a most unnecessary and therefore a most un- 
justifiable war." Henry Clay asked: " Must we blindly con- 
tinue the conflict, without any visible object, or any pros- 
pect of a definite termination.'* ... It is the privilege of 
the people in their primary assemblies, and of every private 
citizen, however humble, to express an opinion in regard 
to the purposes for which the war should be continued." 
Charles Sumner outdid Berger in vituperation : " The Mex- 
ican War is an enormity born of slavery. . . Base in ob- 
ject, atrocious in beginning, immoral in all its influences, 
vainly prodigal of treasure and life ; it is a war of infamy 
which must blot the pages of our history." ®* The addi- 
tional element of conviction in the Berger case should be 
limited in its efi'ect to the statutory penalty and should 
not overthrow the principle recognized in the cases just 
mentioned and many others, that variations of public opinion 
with respect to a war, especially if it is past, should be 
allowed to reflect themselves in the national legislature with- 
es J, p. Rhodes, History of the United States, IV, 622 ff. 
54 Berger Hearings, I, 712, 713. On the War of 1812, see Beveridge's 
Marshall, IV, c. I. 



WILKES AND HIS SUCCESSORS 331 

out interference. It is significant that all the Entente pow- 
ers, except Japan, have admitted to their legislatures with- 
out any hesitation Socialists who opposed the war as vig- 
orously as Berger, with the same intention to bring it to an 
immediate close. Indeed, some of the Italian Socialists were 
elected while serving prison sentences for their militant anti- 
war activities. ^^ 

Therefore, although Berger's statements in the Milwaukee 
Leader, before the committee, and in Congress at the time 
of his exclusion, entitle him to no personal sympathy, never- 
theless the twofold denial of his seat was, apart from all 
questions of legality, a great mistake and a wrong to the 
voters of the fifth district of Wisconsin. 

The action of the House of Representatives has, how- 
ever, still more serious and far-reaching aspects. If it had 
been based simply on Berger's conviction its effect would 
be limited to men who have been actually convicted under 
the Espionage Act, although if such were its ground, it 
would have been desirable to follow the view of the mi- 
nority member of the committee, Mr. Rodenberg, and sus- 
pend legislative action until the final result of the prose- 
cution had been reached by the Circuit Court of Appeals. 
The great evil of the case is that the House of Repre- 
sentatives and its committee assumed the power to go be- 
hind the conviction, and expressed the view that without 
any conviction at all Berger could be deprived of his seat 
because of his opposition to the war. The chairman of the 
committee, Mr. Dallinger, said in the debate upon the first 
exclusion : 

The one and only issue in this case is that of Americanism. It 
is whether a man who in 191 1 took an oath as a member of the 
House to support the Constitution of the United States and who, 
when this country declared war against the Imperial German 
Government, became the head and front of an organized con- 
spiracy to hinder, obstruct, and embarrass the Government in 
its fight for existence, should be admitted to membership in this 

66 Socialist Review, February, 1920, p. 159. 



332 FREEDOM OF SPEECH 

House simply because a constituency in one of our States has 
seen fit to give him a plurality of its vote. 

This issue is far broader than the question of a conviction 
for a violation of a particular statute by a court in Chicago, an 
appeal from which may be set aside by a higher court on technical 
grounds, and your committee is convinced upon all the facts and 
upon all the precedents in this House that Victor L. Berger 
should be excluded from membership, and that the question should 
be determined by the House here and now. In our opinion the 
House expects it; the men who fought for their country in the 
great war expect it; the entire country expects it. 

Therefore, while the precise legal ground of the Berger ex- 
clusion was the Fourteenth Amendment, the case gave public 
currency to the broad proposition that " disloyalty " during a 
war would bar a duly elected representative. Thus long after 
a war was over, a legislature could without any previous judi- 
cial condemnation conduct an inquiry into the mental state of 
a man during the war and the tendency of his utterances 
to discourage the national cause, just the kind of investi- 
gation which is shown in my second chapter to have proved 
so vague and unsatisfactory in the hands of an impartial 
judge and jury and which was justified if at all only by 
the great necessities and dangers of the war. Further- 
more, the conduct for which Berger was convicted and ex- 
cluded was said by him and regarded by many of his oppo- 
nents to be that of the Socialist Party generally, so that if 
conviction were an immaterial factor as Mr. Dallinger said, 
Berger's ineligibility could naturally be extended to any 
Socialist. Thus the popular impressions created by the 
Berger case paved the way for one of the most astonishing 
episodes in American political life. 

V. The Five Socialist Members of the New York Assembly 

Then stood there up one in the council, a Pharisee, named 
Gamaliel, a doctor of the law, had in reputation among all the 
people, and said unto them: "Ye men of Israel, take heed to 
yourselves what ye intend to do as touching these men. Refrain 
from these men and let them alone : for if this counsel or this work 



WILKES AND HIS SUCCESSORS 333 

be of men, it will come to nought; but if it be of God, ye can 
not overthrow it; lest haply ye be found even to fight against 
God." — The Acts of the Apostles. 

On January 7, 1920, just before the second exclusion of 
Berger, and while the front pages of the press were still 
full of the great conspiracy which would have overthrown 
the nation had it not been for the New Year's round-up 
of four thousand left-wing radicals, the New York Legis- 
lature opened its session. Among the members of the As- 
sembly or lower house were five Socialists, Claessens, Solo- 
mon, Waldman, De Witt, and Orr. The Socialist Party 
of New York was a legally recognized party under the 
Election Law,^'' so that its candidates had as much right 
on the ballot as Democrats or Republicans. All these So- 
cialists except De Witt had previously served in the As- 
sembly. The opposition of the party to the war had aroused 
no objection to its representatives at any time during the 
conflict, even when ten of them took their seats at Albany 
just before the Spring Drive of 1918. And on this day, in 
1920, the five members took office without interference, swear- 
ing that they would support the Constitution of the United 
States and that of New York, and discharge the duties of 
their office to the best of their ability, and that they had 
not influenced votes by bribe or promise. The New York 
fundamental law prescribes this oath and makes it all- 
sufficient : ^^ 

No other oath, declaration or test shall be required as a quali- 
fication for any office of public trust. 

They occupied their seats and entered into all the busi- 
ness of the day, participating in the organization of the 
House and voting for Speaker and other officers. These 
proceedings occupied upwards of two hours. 

56 Sec. 3 (9) "The term 'party' means any political organization 
which at the last preceding election for governor polled at least fifteen 
thousand votes for governor." The Socialist candidate in 1918 received 
over 120,000. 

57 N. Y. Const., Art. XIII, § 1. 



334 FREEDOM OF SPEECH 

Suddenly the newly-elected Speaker, without notice or mo- 
tion, directed the Sergeant-at-Arms to present the five Social- 
ist members before the bar of the House.^^ The surprised 
men were paraded down into the well of the Assembly cham- 
ber in front of the Speaker's rostrum, in full view of their 
fellow members and hundreds of guests, who crowded the 
galleries and the floor to witness the ceremonies of the open- 
ing day. There they were lined up with the Sergeant-at- 
Arms on guard, while the Speaker addressed them: 

You are seeking seats in this body, you who have been elected 
on a platform that is absolutely inimical to the best interests of the 
State of New York and of the United States. 

He then declared that the Socialist Party was not truly 
a political party, but a subversive and unpatriotic organiza- 
tion, and informed them that if the House should adopt a 
resolution declaring their places vacant they would be given 
an opportunity to appear before a tribunal to prove their 
rights to a seat in the Assembly. 

A resolution ^^ drafted by the Attorney General in his 
capacity as counsel for the Lusk Committee was presented. 
This did not even recite that the members were charged 
with certain offenses, but stated facts as if already proved, 
an Alice-in-Wonderland performance of " sentence first — 
verdict afterwards." It declared that they were members 
of the Socialist Party of America, which adhered to the 
revolutionary forces of Soviet Russia and endorsed the prin- 
ciples of the Communist International of Moscow, and this 
was pledged to the forcible and violent overthrow of all or- 
ganized governments. They agreed to be guided by the 
party constitution and platform, and could be expelled from 
the party for disobeying the instructions of the Executive 
Committee, which might include aliens. The party by its 
St. Louis platform had opposed the war, and thereby stamped 
itself and all its members with an inimical attitude to the 

58 Briefs, and New York Times, January 8, 1920. 
60 Record, p. 367. 



WILKES AND HIS SUCCESSORS 335 

best interests of New York and the United States. These 
five members had subscribed to its principles and its aims 
and purposes against the government. They had been con- 
nected with an organization convicted of a violation of the 
Espionage Act. Therefore, it concluded, they were denied 
seats in the Assembly " pending determination of their qual- 
ifications and eligibility to their respective seats " ; and the 
investigation of their qualifications and eligibility was re- 
ferred to the Committee on Judiciary. The roll-call was 
then taken and the five Socialists were called upon to vote 
as members. After the passage of the Resolution they were 
hustled by the Sergeant-at-Arms out of the chamber, where 
their seats remained vacant for the remainder of the ses- 
sion, to the disfranchisement of sixty thousand voters of 
the City of New York. 

In one of those magnificent decisions whereby the Supreme 
Court of the United States in former years fortified the 
civil liberties wrested from authority by the long struggles 
of the seventeenth and eighteenth centuries and proclaimed 
in the American Bill of Rights, Justice Bradley warned us 
that illegitimate and unconstitutional practices get their 
first footing by silent approaches and slight deviations from 
legal modes of procedure.®" Since the 15th day of June, 
1917, the nation had been led on by its panic-stricken fear 
of adverse opinion to abandon one national tradition after 
another. Every unheeded prediction of the handful of lib- 
erals was more than fulfilled. The Espionage Act was 
only to punish interference with recruiting and military dis- 
cipline. It was used against all prominent opposition to 
the war. Every one agreed that freedom of speech meant 
the absence of previous administrative restraint on political 
discussion — and the Postmaster General was allowed to es- 
tablish a whimsical censorship of the political press and 
maintain it long after the last American soldier had been 
demobilized. Suppression was said to be only a war meas- 
ure. The states prolonged it into peace, and the Attorney 
60 Boyd V. U. S., 116 U. S. 616, 635 (1885). 



336 ±'REEDOM OF SPEECH 

General of the United States begged Congress to imitate 
them. Radical aliens were put under control, and a similar 
law was demanded for radical citizens. One by one, the 
right of freedom of speech, the right of assembly, the right 
to petition, the right to protection against unreasonable 
searches and seizures, the right against arbitrary arrest, 
the right to a fair trial, the hatred of spies, the principle 
that guilt is personal, the principle that punishment should 
bear some proportion to the offense, had been sacrificed 
and ignored. Here and there a solitary and despised pro- 
test — the rest was silence. And now the waves of hysteria 
dashed against the very foundation of American life, the 
right of the people to elect their own rulers. Berger was 
excluded after he was convicted of crime, but these men 
were excluded without any conviction, without any crime, 
without any trial, from the oflBces which they had taken with 
all the qualifications and formalities prescribed by the fun- 
damental law. At last the leaders of thought were awakened 
to the realization that a government cannot be saved, is not 
worth saving, at the cost of its own principles. 

The successor of Jefferson had taken no step to stop 
the encroachments on freedom of speech, had signed his 
name to both Espionage Acts, had allowed his officers with- 
out a reproach to censor and raid and arrest as they 
chose. It was reserved for the Republican presidential 
candidate at the election of 1916 to become the 
champion of Anglo-Saxon liberties. Charles Evans Hughes, 
leader of the American bar, former Governor of New York, 
former Justice of the Supreme Court, within forty-eight 
hours of the Albany imbroglio, wrote Speaker Sweet that it 
was absolutely opposed to the fundamental principles of 
our government for a majority to undertake to deny rep- 
resentation to the minority through the men who had been 
elected by a ballot laivfully cast.^^ 

If there was anything against these men as individuals, if they 
were deemed to be guilty of criminal offenses, they should have 

61 iVew York Times, January 10, 1920; Sweet's reply, January 11. 



WILKES AND HIS SUCCESSORS 337 

been charged accordingly. But I understand that the action is 
not directed against these five elected members as individuals but 
that the proceeding is virtually an attempt to indict a political 
party and to deny it representation in the Legislature. This is 
not, in my judgment, American government. 

Are Socialists unconvicted of crime, to be denied the ballot.^ 
If Socialists are permitted to vote, are they not permitted to vote 
for their own candidates? If their candidates are elected and 
are men against whom, as individuals, charges of disqualifying 
oflfenses cannot be laid, are they not entitled to their seats ? . . . 

I understand that it is said that the Socialists constitute a 
combination to overthrow the Government. The answer is plain. 
If public officers or private citizens have any evidence that any 
individuals, or group of individuals, are plotting revolution and 
seeking by violent measures to change our Government, let the 
evidence be laid before the proper authorities and swift action 
be taken for the protection of the community. Let every resource 
of inquiry, of pursuit, of prosecution be employed to ferret out 
and punish the guilty according to our laws. But I count it a 
most serious mistake to proceed, not against individuals charged 
with violation of law, but against masses of our citizens combined 
for political action, by denying them the only resource of peaceful 
government; that is, action by the ballot box and through duly 
elected representatives in legislative bodies. 

Speaker Sweet, after consultation with the Lusk Com- 
mittee, replied that the Socialists were not expelled, but 
merely subjected to an investigation by the body which was 
charged by the Constitution with the authority to inquire 
into the fitness of those who seek seats in the Assembly. 
The question presented squarely was whether the different 
organizations which they sought to represent in the leg- 
islature advocated methods and employed tactics to over- 
throw our form of government, which would justify theii' 
exclusion from participating in legislative proceedings. He 
thus characterized the proceeding, as did the Attorney Gen- 
eral of New York,^^ not as an inquiry into the personal 
unfitness of these men or into the overt acts of any one, but 
into the opinions and words of whole groups. Finally he 
stated that criticism of the Assembly action without full 

62 Ibid., January 9. 



338 FREEDOM OF SPEECH 

knowledge of the facts gave aid and comfort to those ele- 
ments of our society which seek the destruction of our in- 
stitutions. 

Nevertheless, criticism poured in, not only from Social- 
ists and labor unions, but from large conservative groups 
like the National Security League. The New York Board 
of Aldermen refused to follow the example of the Assembly 
as to its Socialist members. For once the Tribune and the 
Review stood shoulder to shoulder with the New Repub- 
lic and the Nation, and outdid them in the vigor of their 
condemnation. The Bar Association of the City of New 
York adopted resolutions offered by Governor Hughes, op- 
posing any attempt to exclude legislators because of their 
affiliation with any political party, when they are seeking by 
constitutional and legal methods to bring about any change 
in the Constitution and laws. The Association appointed a 
committee of non-Socialists to appear before the Judiciary 
Committee of the Assembly and safeguard the principles of 
representative government.®^ No action could have done 
more to strengthen the confidence of workingmen in the public 
spirit of the bar. 

The Assembly paid no more attention to these protests 
than the House of Commons to the remonstrances of Burke 
and the voters of England on behalf of Wilkes. The As- 
sembly was past saving, but the nation was saved. The 
American people, long bedrugged by propaganda, were 
shaken out of their nightmare of revolution. The red ter- 
ror became ridiculous on the lips of Speaker Sweet. A 
legislature trembling before five men — the long-lost Ameri- 
can sense of humor revived and people began to laugh. That 
broke the spell. The light of day beat in not only upon 
the Assembly, but upon Congress and the Department of 
Justice. Never again did the hysteria of the past year re- 
turn. The raids of January 2d were flood-tide, and with 
Governor Hughes' letter on the 9th, the ebb set in. Then 
followed the opposition of the conservative press and sober 

63 New York Post, January 14. 



WILKES AND HIS SUCCESSORS 339 

speakers to the pending federal sedition bills, the disclosures 
in the Colyer trial of the illegal character of the New Year's 
round-up, the decision of Secretary Wilson legalizing the 
Communist Labor Party, the wholesale cancellation of de- 
portation warrants. The American people owe a lasting debt 
of gratitude to the New York Assembly. 

But there was no return to sanity in Albany. On Jan- 
uary 20th the investigation of the five members began before 
the Judiciary Committee, which was appointed by the 
Speaker who had taken such a definite stand against them. 
At the outset the Bar Association committee appeared, with 
Mr. Hughes as its chairman, but was not allowed to par- 
ticipate in the proceedings. Before withdrawing it filed a 
brief and these recommendations : ^* 

That the Judiciary Committee at once report to the Assembly 
that there is no question properly before the Judiciary Committee 
of any disqualification on the part of these members; that no 
charges against these members of any constitutional disqualifica- 
tion, or of any misconduct in office or of any violation of law on 
their part have been properly made, that the members under 
suspension should at once be restored to the privileges of their 
seats and that if it be desired to present any charges against them 
of any violation of law, such charges should be properly for- 
mulated, and that until such charges, properly laid, have been 
established by proof, after due opportunity to be heard, these 
members shall enjoy all the privileges of their seats in recog- 
nition of their own rights and of the rights of their constituencies. 

This position is conclusively established by the Bar As- 
sociation in its brief.®^ After the respondents had taken the 
constitutional oath of office, and in the absence of any per- 
sonal misconduct during their term, they became entitled 
to participate in all proceedings of the Assembly until they 
were actually ousted. This has always been the practice 
in Congress, even on charges of bribery ; for instance, Sen- 
ator Lorimer participated in all the proceedings of the 
Senate until he was finally disqualified, and Senator Truman 

fi* Record, p. 6; Socialist Brief, p. 7. 
65 Pages 8-20. 



340 FREEDOM OF SPEECH 

H. Newberry of Michigan, who has been actually convicted 
of corrupt practices, still retains his seat and will continue 
to do so even during any investigation that may be made 
of his conduct by the Senate. The issue of free speech, 
however, is less concerned with the unwarranted method of 
the proceedings against the five members than with the ques- 
tion whether there was any legal cause to deprive them of 
their seats by any method whatever. 

The opening clause of the New York Constitution pro- 
vides that no member of this state shall be disfranchised 
unless by the law of the land, or the judgment of his peers. 
Like the United States Constitution, it makes each House 
" the judge of the elections, returns and qualifications of 
its own members," ®® but it imposes the restriction already 
mentioned that no declaration, test or oath shall be imposed 
except that specified. Certain offices are a disqualification,^^ 
but even the right to vote is not a requisite for eligibility.®^ 
The power to expel is conferred by statute.^^ The power to 
suspend is not given by Constitution or statute. Although 
this was an inquiry into qualifications and not an expulsion, 
yet since the method is immaterial it is desirable to review the 
cases of both exclusion and expulsion to determine whether 
a Legislature, especially in the absence of any disqualifying 
statute, can lawfully unseat a member for opinions and 
affiliations without overt acts. 

The analysis of the law on this question is peculiarly 
difficult. The judicial precedents are necessarily few and 
indirect in their bearing, for the courts have uniformly 
denied that they have any power to review either legislative 
expulsions or legislative decisions on the qualifications of 
members.'" The house in making decisions on qualifications 

68 Art. Ill, § 10. 

67 Art. Ill, § 8. 

68 Barker v. People, 3 Cow. 686, 703 (1824); Cooley, Constitutional 
Limitations, 7th ed., 894 note. 

6i» Legislative Law, § 3. " Each house has the power to expel any 
of its members after the report of a committee to inquire into the 
charges against him shall have been made." 

70 Hiss V. Bartlett, 3 Gray (Mass.) 468 (1855); French v. Senate, 



WILKES AND HIS SUCCESSORS 341 

and in other election cases acts in a judicial capacity, in spite 
of the doctrine of the separation of powers, and such con- 
troversies do not fall within the general judicial power vested 
in the courts, since the constitutions expressly confer juris- 
diction upon the legislative chamber in question. However, 
judges have sometimes been called upon to discuss whether 
anybody has power to add to the constitutional require- 
ments for eligibility. Justice Story, in denying that the 
states can impose additional tests for a member of Congress, 
for example, that he shall reside in the district which electp 
him, writes : ^^ 

It would seem but fair reasoning, upon the plainest principles 
of interpretation, that when the Constitution established certain 
qualifications as necessary for office, it meant to exclude all others 
as prerequisites. From the very nature of such a provision, the 
affirmation of these qualifications would seem to imply a negative 
of all others. 

There is much force in his position, that the power to 
judge " qualifications " means only constitutional qualifica- 
tions, but it does present difficulties, especially when the con- 
stitutional requirements for eligibility are so meagerly stated 
as in New York. Can infeanity be made a bar, or is 
it only a ground for expulsion after admission.'' Were 
women eligible to Congress, before they were allowed to vote, 
inasmuch as they were not specifically excluded.'' Or were 
they under a common law ineligibility, which had to be read 
into the Constitution.''^^ At all events, some judges have 
been willing to admit that in some instances the requirements 
of the Constitution may be added to, but only within narrow 
limits. (1) Additional qualifications can be imposed only 
by law; that is, by a statute enacted by both houses of the 
legislature, and signed by the governor. The body which 

146 Cal. 604 (1905) ; P. ex rel. Hatzel v. Hall, 80 N. Y. 117, 122 (1880) ; 
P. V. Mahaney, 13 Mich. 482, 492 (1865). 

711 Story on the Constitution, §625; Congress has always refused 
to recognize these state limitations as valid. 1 Hinds' Prec. 381, 384, 387. 

72 " Eligibility ofi Women for Public OflSce," 38 Harv. L. Rev. 295 
(1919). 



342 FREEDOM OF SPEECH 

judges the qualifications of its members cannot itself legally 
create new qualifications any more than the Supreme Court 
of the United States can legally create new income taxes. 
One house cannot make the law, and eligibility is fixed by 
law." (2) The highest court of the state of New York has 
decided that the legislature under its power to punish crimes 
can pass a valid statute, making conviction for duelling a 
disqualification for the legislature, but said through Chan- 
cellor Sanford : ^* 

Eligibility . . . belongs equally, to all persons whomsoever, 
not excluded by the constitution. I therefore conceive it to be 
entirely clear, that the legislature can not establish arbitrary exclu- 
sions from office, or any general regulation requiring qualifications, 
which the constitution has not required. If, for example, it should 
be enacted by law, that all physicians, or all persons of a particu- 
lar religious sect, should be ineligible to public trusts ; . . . any 
such regulation, would be an infringement of the constitution; 
and it would be so, because, should it prevail, it would be in 
effect, an alteration of the constitution itself. . . . There may 
be an exclusion by law, in punishment for crimes; but in no other 
manner, and for no other cause. 

(3) In New York and other states which have constitutions 
forbidding any other " oath, declaration, or test " except 
that specified, this prohibits not merely new forms of test 
oaths, but all arbitrary requirements as a qualification for 
voting or office-holding, particularly those based on opinions 
and party affiliations, and it makes no difference that these 
requirements are imposed by statute. Thus, the New York 
Court of Appeals has held a statute unconstitutional which 
required voters to swear that they had never borne arms 
against the United States, given aid to the enemy, deserted, 
or evaded the draft.''^ It has also invalidated a statute 

73 Barker v. People, 3 Cow. 686, 707 (1824) ; P. ex rel. Bush v. 
Thornton, 25 Hun 456, 463 (1881). 

74 Barker v. People, 3 Cow. 686, 703, 704, 707. The italics are mine. 

75 Green v. Shumway, 39 N. Y. 418 (1868); Goetcheus v. Matthewson, 
61 N, Y. 420 (1875). Similar disqualifications for preaching, teaching, 
or practising law have been declared invalid under the U. S. Consti- 
tution. Cummings v, Missouri, 4 Wall. 277 (1866) ; Ex parte Garland, 
4 Wall. 333. 



WILKES AND HIS SUCCESSORS 343 

which made all persons except members of the two leading 
political parties ineligible for the Albany police commission. 
Judge O'Brien declared: ''^ 

The legislature of this state has no power to enact a law which 
proscribes any class of citizens as ineligible to hold public office 
on account of political belief or party affiliations. 

Clearly, all these cases render the unseating of the five 
Socialists illegal. They were not made ineligible by any 
law, but by the fiat of the Assembly alone. They had not 
been convicted of crime, and they were guilty of no crime 
which was a statutory bar to office. And they were pro- 
scribed for their political beliefs and party affiliations. 

Let us now turn to the legislative precedents and see how 
far they agree with the judicial discussion. At the outset, 
the reader must be warned that these precedents rarely 
afford a satisfactory formulation of the principle on which 
the house acted, which can be automatically applied in sub- 
sequent cases after the manner of court decisions. A legis- 
lature is not by nature a judicial body. Its members are 
chosen and organized for carrying out policies, and not, like 
judges, for the sole purpose of thinking together. When 
they are called upon to perform judicial duties in trying 
impeachments and charges of bribery, the most earnest 
efforts to attain impartiality hardly prevent them from 
being swayed by party motives, and their debates lack the 
training and the restraints which mold the words of judges. 
The Lorimer case brought out these qualities of a legislative 
trial, and a few years ago the New York Senate refused to 
expel two members for corrupt practices, who were subse- 
quently tried and convicted for the same offense. Moreover, 
the basis of a legislative discussion is often obscure because of 

76Rathbone v. Wirth, 150 N. Y. 459, 485 (1896), and see cases cited 
from other states. (Some of the judges rested the invalidity of the 
statute on other clauses of the N. Y. Constitution.) The legislature 
may of course impose requirements which relate directly to fitness for 
the particular oflBce, e.g., that only physicians are eligible to the board 
of health. Rogers v. Common Council, 123 N. Y. 173, 184 (1890). 



344! FREEDOM OF SPEECH 

the number of persons who join in the debate. Sometimes 
the only certain fact is that the member was or was not 
unseated. It is significant that the Wilkes case led Parlia- 
ment to delegate the trial of controverted elections to a tri- 
bunal of judges." The Berger and Socialist cases might 
well lead us to consider establishing a preliminary investiga- 
tion by judges instead of by a legislative committee and thus 
obtaining the benefit of a trained judicial opinion as the basis 
of the action of the house.'^ 

The English legislative precedents show that Parliament 
has no control over the eligibility of candidates but simply 
administers the laws defining their qualifications. One house 
of Parliament cannot create a disability unknown to the law. 
This was established by the Wilkes case and by that of 
Charles Bradlaugh, who was at first debarred and expelled 
from the House of Commons on the ground that as an ag- 
nostic he could not conscientiously take the oath, but was 
eventually on re-election sworn in without objection, and the 
resolution debarring him was expunged from the journals. 
On the other hand, each house has power to suspend or expel 
by way of punishment. Members have been suspended for 
disregarding the authority of the chair or obstructing busi- 
ness. They have been expelled for crimes and other dis- 
graceful acts which render them unfit for a seat and which 
if not so punished would bring discredit on Parliament. 
Lord Campbell thinks even an offense before election is cause 
for expulsion if conviction follows election, for there might 
be a presumption that his constituents would not have elected 
a person guilty of such misconduct, and it might be fair to 
give them an opportunity of determining whether they 
would still have him for a representative. Expulsion is not 
a disqualification if the member be re-elected. Except for 

" May, Parliamentary Practice, 12 ed., 581. 

'8 This plan is already in force in Pennsylvania. Re McNeill, 111 
Pa. St. 235 (1885). The legislature could not completely delegate the 
decision of such contests. S. v. Gilmore, 20 Kan. 551 (1878) •' Dalton 
V. S. ex rel. Richardson, 43 Oh. St. 652, 680 (1885). The Presidential 
Electoral Commission of 1877 affords an analogy. 



WILKES AND HIS SUCCESSORS 345 

Wilkes and Bradlaugh, no person has been expelled in 
modern times for conduct involving the expression of opin- 
ions, and both these expulsions were officially declared to be 
wrong and expunged.^® 

The Congressional precedents also afford no support for 
the contention of the New York Assembly that duly elected 
legislators can be disqualified or expelled for disloyal opin- 
ions which have not been made a bar by law. There is no 
authority that a house will go into the question of the moral 
fitness of a member to occupy a seat. Where would such 
an inquiry stop, and what standards could be fixed? Each 
house undoubtedly has the right to expel a member for actual 
crimes committed after his induction to office, but it is set- 
tled that it cannot punish him for an offense committed 
before his election, and even Lord Campbell's view of the 
effect of conviction after election is opposed by the case 
already mentioned of Matthew Lyon, imprisoned under the 
Sedition Act of 1798. This disposes of the half-hearted con- 
tention that the New York Socialists had violated the Es- 
pionage Act during the war.®" 

At the outbreak of the Civil War several Southern 
Senators and Representatives were expelled for their treason- 
able conduct in remaining permanently absent from their 
Congressional duties and either taking up arms against the 

79 May, op. cit., 69-62, 153-156, 187. He does not discuss the ques- 
tion whether a member can be expelled for an offense committed before 
his election. 1 Story on the Constitution, § 838, says the power is not 
limited to offenses during the particular session. Lord Campbell's 
opinion is in his Life of Lord Camden, Lord Chancellors, (1846 ed.) 
V, 276. 

so Berger Report, 10; opinion by Speaker Cannon in 3 Hinds' Prec. 
1157; 2 ibid. 829-860, 1 ibid. 521, for cases. But see arguments contra, 
1 ibid. 437, 524. Apparently no one has been expelled from Congress 
for crimes, except those against the Government, but several men have 
resigned. There is some doubt whether a member can be expelled for 
crimes unrelated to his office. See the majority and minority reports in 
the Roberts case. 1 Hind's Prec. 523. The House refused to expel 
Herbert of California in 1857, who was charged with homicide, and 
Harris of Maryland in 1865, though convicted of aiding the rebellion 
(probably before election), and Cannon of Utah in 1875, though a 
polygamist. 1 Hinds' Prec. 500. For the Espionage Act charge, see 
Assembly Outline, 75. No evidence is given. 



346 FREEDOM OF SPEECH 

government or entering the Confederate lines and actively 
participating in the rebellion/^ On the other hand, both 
houses refused to expel members from border states who 
had committed no overt acts, but had vigorously opposed by 
speeches the prosecution of the war by the North.^^ Among 
these were Representative Long of Ohio, who declared himself 
in favor of recognizing the independence of the Confederacy, 
Representative Harris of Maryland, who said, " I hope you 
will never subjugate the South," and Senator Powell of 
Kentucky. Powell presided at a large Southern States' 
Rights convention in Kentucky in June, 1861, which urged 
the recall of the Northern armies and the recognition of the 
Confederacy and endorsed the action of the Governor in re- 
fusing to furnish troops to subjugate the South and for- 
bidding both sides to invade Kentucky. In September, 1861, 
he was a delegate to a second convention, which adopted 
resolutions drafted by a committee of which he was a mem- 
ber, proclaiming the neutrality of Kentucky and refusing 
aid by money, taxation, or loans to " a cause so hopeless 
as the military subjugation of the Confederate States." 
The Committee on the Judiciary reported against expulsion, 
and its chairman. Senator Trumbull of Illinois, whose 
loyalty no man can question, stated in debate that though 
the resolutions were downright opposition to the constituted 
authorities of the government and wholly unjustifiable, and 
though the neutrality of Kentucky did favor the cause of 
the rebellion, yet when that neutrality was abandoned Powell 
had discharged his duties to the government at Washing- 
ton ; " and no man is to be expelled from this body because he 
disagrees with others in opinion." The resolution of expul- 
sion was overwhelmingly defeated. 

The Assembly relies on the case of Senator Bright of 
Indiana, who was expelled by a bare two-thirds for writing 
a letter to Jefferson Davis, bringing a military invention to 

81 2 Hinds' Prec. 812, 813, 822-826. See also the expulsion of Senator 
Blount in 1797 for trying to alienate the Creek Indians from the resident 
Government officials, 2 ibid. 813. 

82 2 ibid. 803, 827. 



WILKES AND HIS SUCCESSORS 347 

his attention. It is true that some language used in the 
debate about other utterances of Bright implied a power to 
expel merely for disloyal opinions, but his conduct was 
treasonable aid to the enemy if the requisite intent existed, 
and Senator Trumbull in moving his expulsion based it 
squarely on the ground of treason. ^^ Therefore, this and all 
the other expulsion cases draw the line between overt acts 
identifying the legislator with the enemy and opposition to 
war by words. A legislator can be expelled only for criminal 
or otherwise disgraceful conduct subsequent to his election, 
and not for disloyal language or for affiliations with political 
groups, even if like the Kentucky neutrals they oppose the 
government without, however, joining its enemies. 

The Congressional precedents on the unseating of mem- 
bers because they are not qualified are still more important, 
since the action of the New York Assembly, though often 
called an expulsion, was really an adjudication of ineligi- 
bility and not an expulsion for misconduct. A review of 
these precedents reveals two sharply conflicting views. The 
first accords with Story's opinion that no addition can be 
made to the constitutional requirements.^* The Constitution 
gives the people the inalienable right to choose any one they 
please who has the qualifications named. An insane man 
cannot take his seat if he lacks the mental capacity to take 
the constitutional oath. Bribery and corrupt practices con- 
nected with the election prevent him from being duly elected, 
for fraud vitiates all transactions, and an unseating on this 
ground, as in the Lorimer case,®^ is not a disqualification for 

83 2 ibid. 821; see extracts from debates omitted by Hinds in As- 
sembly Outline, 83, and Socialist Brief, 110. 

84 The fullest discussion of both views is in the minority report in 
the Roberts case, 1 Hinds' Prec. 518 (unseated). See also Stark, 
1 ibid. 433 (seated); Smith v. Brown, 1 ibid. 441 (unseated); McKee 
V. Young, 1 ibid. 451 (unseated); Thomas, 1 ibid. 466 (unseated); 
Maxwell v. Cannon, 1 ibid. 493 (seated) ; Campbell v. Cannon, 1 ibid. 
600 (unseated) ; Smoot, 1 ibid. 561 (seated) ; discussion by House Com- 
mittee, 1 ibid. 591; Berger Hearings and Report (unseated). Among 
those presenting the first view are Littlefield of Maine, 1 ibid. 537; 
Senator Knox, 1 ibid. 587; Senator Reverdy Johnson, 1 ibid. 489. 

85 Webb and Pierce, Senate Election Cases, 1002. But see P. ex rel. 
Bush V. Thornton, 25 Hun 456 (1881). 



348 FREEDOM OF SPEECH 

crime, but a decision that no valid election has taken place. 
Crime as such is no bar, except treason by virtue of the 
Fourteenth Amendment. Representative government relies 
on the judgment of the people to pick fit men, not on the 
wisdom of a House of Congress or any other select group. 
In the improbable event that a district should elect a con- 
victed murderer, he can act so long as he is at large. If 
the general welfare requires that this be made impossible, 
then the Constitution should be amended. A power in the 
legislature to add new qualifications is equivalent to a power 
to change those prescribed by the fundamental law. If it 
can add crime or disloyal acts as bars, it can add profiteer- 
ing as well. There is no line to be drawn, once it is allowed 
to cross the constitutional limits. It can turn our democ- 
racy into an oligarchy by imposing high property qualifica- 
tions, or into a dictatorship of the proletariat by declaring 
ineligible all persons deriving income from rents and invested 
capital. 

The second view allows some additions to be made to the 
constitutional qualifications. Otherwise, the great leaders 
of the Confederacy might have been seated before the Four- 
teenth Amendment, or Brigham Young could have been 
elected and his forty wives have occupied the gallery to see 
him sworn in. Is a man to be brought from a felon's cell to 
the floor of the Senate? Suppose a representative just before 
he is sworn in should create some outrageous disturbance 
in the House ; if he cannot be disqualified, will it be neces- 
sary to go through the rigmarole of first swearing him in, 
and then expelling him.'' The duty of each chamber to 
preserve the nation and carry on business is said not to be 
sufficiently safeguarded if the constitutional requirements 
are exclusive of all others. 

The view forbidding all additions seems to me the sounder 
in the United States Government, and still more obligatory 
under the New York Constitution, with its clause against 
other tests. It must be conceded, nevertheless, that notwith- 
standing the ability of the men who have taken this position. 



WILKES AND HIS SUCCESSORS 34i9 

it has frequently been rejected in Congressional practice, 
and is also opposed to the opinion of the New York Court, 
rendered however before the adoption of the test clause just 
mentioned, that conviction for crime could be made a bar 
by statute.*" Yet even if the second view be accepted, the 
range of new qualifications has been so closely limited by 
Congress that neither of the two views furnishes the 
slightest support for the proceedings of the New York 
Assembly. 

In the first place, the Congressional precedents agree with 
the Wilkes case and the judicial decisions that qualifications 
must be established by law, and that the resolution of one 
house of Congress cannot make law. Wlien Representative 
Connor of Texas was charged with having cruelly whipped 
negro soldiers under his command and bribing them not to 
testify against him before a military court, Garfield asked 
if anything in the Constitution and laws of the United 
States forbade that a moral monster should be elected to 
Congress. Connor was sworn.*^ The House also refused 
to inquire into a charge of seduction, and the Senate into 
one of embezzlement."* All the exclusions which have oc- 
curred were for offenses which had expressly been made a 
disqualification by Act of Congress.*^ 

The most important of these statutes was enacted in July, 
1862. In January of that year the Senate had decided that 
Stark of Oregon was entitled to take his seat, although he 
had made disloyal speeches. Senator Harris of New York, 
the Chairman of the Judiciary Committee, denied in debate 
that the Senate ought to be the ultimate judge of a man's 
fitness or was competent to reject him upon any view it 

86 See p. 342, supra. 

87 Grafton v. Connor, 1 Hinds' Prec. 488. 
ssAckJen, 1 ibid. 489; Roach, 1 ibid. 570. 

89 Besides the statutes mentioned, Act of February 26, 1853, c. 81, 
10 Stat, at L. 171, disqualifies any member convicted of receiving bribes 
for discharging an official function. B. F. Whittemore of South Carolina 
resigned to avoid expulsion for sale of West Point appointments, was 
at once re-elected, and disqualified. 1 Hinds' Prec. 487. The case 
cannot be supported. See 1 ibid. 640 for a vigorous attack on this case. 



350 FREEDOM OF SPEECH 

might take of his moral, intellectual, or political capacity.^" 
It was not until the passage of the Test Oath Act,^^ obliging 
men to swear before admission to office that they had never 
borne arms against the United States, given aid, counte- 
nance, counsel, or encouragement to the enemy, or yielded a 
voluntary support to any pretended government, that per- 
sons were excluded for disloyal conduct. Such an Act is of 
course impossible under the New York Constitutional pro- 
hibition of additional oaths and tests. And it is noteworthy 
that although the terms of this statute included much more 
than treason, the ironclad oath was not used to bar mem- 
bers for personal disloyalty or passive sympathy with the 
rebellion, or speeches denouncing the war as an abolition 
war and opposing any further aid toward its prosecution.^^ 
One man was excluded who had sent food to a Confederate 
camp, brought a gun, and pointed out a house where a 
Union soldier was hiding, telling the Southerners to go and 
get him, a clear case of treason. °^ The most extreme case 
was John Young Brown, who was disqualified for a letter 
to the press, saying that Kentucky would not furnish a man 
or a dollar to aid Lincoln in his unholy war against the 
South, that an invading Northern army would be resisted 
to the death, and that any Kentuckian joining it ought to 
be and would be shot down before he left the state.^* This 
is the only instance of disqualification from Congress for 
utterances without overt acts. Thus, even in the heat of the 

90 1 Hinds' Prec. 433. The Assembly Outline, 82, erroneously cites 
this case as authority for the exclusion of the Socialists; besides that 
of Smoot, who was also seated. The only other authorities cited are 
the case of Roberts, a polygamist disqualified by statute, and Bright 
expelled for treason, and a Virginia vote of 1619 excluding men who 
denied they were subject to the government of Virginia. The Assembly 
Brief cites several cases under the Test Oath Act; and several instances 
of expulsion. The principles of these cases are discussed in the text. 

91 Act of July 2, 1862, c. 128, 12 Stat, at L. 502. 

92 Kentucky Members, 1 Hinds' Prec, 441 ; Symes v. Trimble, 1 
ihid. 459. 

93 McKee v. Young, Rowell Dig. Election Cases H. R., 222. Hinds 
does not state the facts fully. Senator Thomas of Maryland was dis- 
qualified for aiding his son to enter the Confederate army. 1 Hinds' 
Prec. 466. 

94 Smith V. Brown, 1 Hinds' Prec. 444. 



WILKES AND HIS SUCCESSORS 351 

Civil War, disloyalty was not a bar to an elected member 
of Congress, until it was expressly made so by a statute, 
and not then unless it was evidenced by actual aid to the 
enemy or words of acute virulence. 

Some doubt was cast upon the validity of the Test Oath 
Act, and in 1868 it was virtually superseded by section three 
of the Fourteenth Amendment,^^ on which rightly or wrongly 
the exclusion of Berger was based. 

The Church of Jesus Christ of Latter-day Saints is a 
much more closely knit and powerful organization than the 
Socialist Party and instead of being legalized by statute 
has frequently been made the object of adverse legislation. 
Consequently, the decisions upon the admission of Mormons 
to Congress are much in point. The constitutional question 
was not squarely raised while Utah was still a territory be- 
cause each house was held to have complete control over the 
eligibility of Delegates, who were distinguished from Rep- 
resentatives. Nevertheless, the decisions at that time make 
the distinction which I have emphasized between overt acts 
and mere opinions.^® In 1868 the election of Hooper was 
contested on the ground that he represented the institution 
of polygamy and a community hostile to the other portions 
of the United States and was disqualified by a secret oath. 
The House Committee reported that Mormonism was antag- 
onistic to the United States but had never organized rebel- 
lion or sedition against the supreme authority of the Union, 
or committed treason by any overt act. Hooper was accord- 
ingly seated. On the other hand, a Delegate who was himself a 
polygamist was unseated. Even in this case a strong minority 
protested against the assumption by the House of the arbi- 
trary power to inquire into the moral fitness of candidates, 
and asked whether if it was a bar for a Delegate to live 
with four women who were married to him, it would also be 
a bar if three of them were not. 

95 P. 323, supra. See Reverdy Johnson in 1 Hinds' Prec. 469. 
96McGrorty v. Hooper, 1 Hind's Prec. 490; Maxwell v. Cannon, 1 
ibid. 493; Campbell v. Cannon, 1 ibid. 50Q. 



352 FREEDOM OF SPEECH 

After the admission of Utah as a state, the issue became 
acute. The Edmunds Act of 1882 had disqualified any 
polygamist, whether convicted or not, from office under the 
United States.®^ Brigham H. Roberts, a convicted polyga- 
mist, who was still living with three wives, was elected Rep- 
resentative in 1898, and was finally unseated after a 
thorough discussion from both points of view of the question 
whether Congress or the House could add qualifications to 
those specified in the Constitution.®^ The majority relied 
to a large extent on his ineligibility under the Edmunds Act, 
so that the case supports the principle already stated, that 
if any disqualification can be added to the Constitution, it 
must be created by law. The minority in an opinion by 
Representative Littlefield of Maine, and De Armond of Mis- 
souri, which has been approved by Chief Justice Cullen of 
New York,®® contended that Congress could not add any 
qualification to the Constitution, especially if it did not 
satisfy the test of Chancellor Sanford ^^° that it must be 
based upon a conviction of crime. The minority declared 
that Roberts should not be disqualified but expelled, not for 
any offense prior to his election but because he was continu- 
ing to commit the crime of polygamy. Inasmuch as the vote 
for unseating him was more than two-thirds, the method of 
removal became academic. At all events the decision is no 
authority for the case of the New York Socialists, because 
it rested upon a statute and upon an alleged breach of the 
compact which Utah had made on entering the Union to 
abandon polygamy forever, and furthermore it involved 
overt criminal acts and not opinions or party affilia- 
tions. 

This distinction is clearly brought out by the refusal of 

97 Act, March 22, 1882, c. 47, § 8; 22 Stat, at L. 31. This was held 
in the Roberts case to apply to members of Congress. 

98 1 Hind's Prec. 518-560. 

99 Dissenting opinion, P. v. Ahearn, 196 N. Y. 221, 252 (1909): 
" No lawyer can read the clear and forceful minority report of Messrs. 
Littlefield and De Armond without at least doubting the correctness 
of this decision." 

100 p. 342, supra. 



WILKES AND HIS SUCCESSORS 353 

the Senate in 1904 to exclude or expel Reed Smoot.^"^ He 
was not himself a polygamist or otherwise disqualified by 
statute, and had personally opposed polygamy in Utah, but 
he was one of the twelve apostles who together with the first 
president ruled over the Mormon hierarchy, and as a body 
encouraged the continuance of polygamous cohabitation (at 
least in long-standing marriages) and controlled the po- 
litical affairs of Utah. According to the majority of the 
Committee, Mr. Smoot came there, " not as the accredited 
representative of the State of Utah, but as the choice of the 
hierarchy which controls the church and has usurped the 
functions of the State." ^^^ Nevertheless, the Senate refused 
to look beyond the question of his personal guilt of crime or 
disbar him for the political and ethical purposes of the 
organization to which he belonged. A powerful argument 
for the prevailing view was made in debate by Senator Knox 
of Pennsylvania, who pointed out that the Constitutional 
disqualifications do not in any way involve the moral quali- 
ties of a man. They relate to facts outside the realm of 
ethical consideration and are requirements of fact easily 
established. As to all matters affecting a man's moral or 
mental fitness the states are to be the judges, in the first 
instance, subject to the power of the Senate to reverse their 
judgment by a two-thirds vote of expulsion when an offense 
or offensive status extends into the period of service ; and 
such a question can only be raised after a Senator has taken 
his seat. It is hardly proper to adopt a rule of constitu- 
tional construction based upon the theory that states will 
send criminals or idiots to the Senate. This position limits 
the effect of the Test Oath cases and relegates them to the 
status of consequences of the extraordinary situation fol- 
lowing the Civil War. 

And finally the precedents in the New York Assembly 

101 1 Hinds' Prec. 561-590. Socialist Brief, 116. The majority of 
the committee recommended disqualification but the Senate adopted the 
minority view, which did not however dispute the political power of the 
hierarchy or its attitude toward polygamy. 

102 1 ibid. 687. 



354 FREEDOM OF SPEECH 

itself are inconsistent with its recent action. ^"^ In 1906 it 
refused to disqualify a member for fraudulent practices in 
connection with a nomination. In 1917 it refused to oust 
another on the ground that he was not a resident of the 
district which he had been elected to represent. And in 
1918 Lucas E. Decker, who was found to have failed to 
register for the selective draft and lied to excuse himself, 
was not excluded. The committee reported that the cir- 
cumstances were matters of public record while Decker was 
a candidate for election, and that " in order to remove a 
member of the Assembly from office, under the Constitution, 
some question involving the election or returns is necessary 
before the Assembly has jurisdiction in the premises, or 
further, that the person so elected must be entirely dis- 
qualified under the Constitution, or by his conduct in the 
house must disqualify himself." The committee's report was 
adopted and Decker declared entitled to his seat by a 
unanimous vote. 

Consequently, the principle is indubitably established, by 
judicial and legislative precedents, that the power to add 
qualifications to those fixed by the Constitution, if it exist 
at all, extends at the most to overt acts which have been 
made a bar by statute. And in New York State in view of 
the test clause in the Constitution and the decision of 
Chancellor Sanford, it is doubtful if even a statute could 
impose any other bar than conviction for crime. No such 
statute existed in the case of the New York Socialists. They 
were convicted of no crime, they were not even charged with 
any crime except a vague and unsubstantiated allegation of 
violation of the Espionage Act.^°* The action of the As- 

103 Socialist Brief, 104-109. 

lOi Assembly Outline, 75. The subsequent Assembly Brief reached me 
too late for extended comment upon its argument (64-76, 195) that the 
Constitution, by requiring an oath to support it, also impliedly requires 
an "inner state of mind" and so makes "disloyalty" or membership 
in a " disloyal organization " a disqualification for taking the oath, which 
the Assembly is authorized to investigate. The dangers of such a vague 
disqualification are obvious and no precedent exists for this doctrine. 
Even in the exasperations and exacerbations of politics after the Civil 



WILKES AND HIS SUCCESSORS 355 

sembly must be characterized as a flagrant usurpation of 
power, only to be found in that government of which Senator 
R,oot/°^ who had good reason to know, said that for forty 
years it had been about as representative and responsible 
as the government of Venezuela. 

The conduct of the investigation was thoroughly in har- 
mony with its illegality. It was not based on any definite 
charges nor was it even limited to the accusations in the 
Resolution of January 7th. The affair had all the charac- 
teristics of an accumulative crime as described by Burke 
in the Wilkes case.^"*^ Whenever the Attorney General or 
his associate counsel thought of some new offense with which 
the Socialist Party could be taxed, it was lugged into the 
case and made a fresh reason for exclusion. The Resolution 
was construed as a roving commission to the Judiciary Com- 
mittee, to find as many objectionable opinions of the So- 
cialist Party as possible, on the theory that twenty-seven 
bad grounds ^"^ for exclusion might be rolled together and 
make one good ground. Inasmuch as there was no demarca- 
tion of counts in this rag-bag and ever-reopened indictment, 
no single fact had to be proved to the satisfaction of a 
majority of the Assembly. One member could vote to 
exclude the five Socialists because he thought they were as 
guilty under the Espionage Act as the three men who were 
convicted at Syracuse ; ^°^ another because he considered 
Socialism threatened the family; a third to protect the 
church; a fourth, because Socialists sought to set up a 

War Congress only refused the Test Oath to men found to have 
committed in the past the very acts which the oath denied. When the 
Constitution requires a solemn oath as to the future, it leaves the 
guarantee of its performance, not to the speculations of other human 
beings, but to the strongest sanctions of conscience and religion. Of. 
note 112. 

105 Quoted in 40 Rep. Am. Bar. Assn. 366 (1915). 

106 p. 314, supra. 

107 See a list of these charges in Socialist Brief, 10 ; also the report 
of the Committee, New York Times, March 31. 

108 See p. 115, supra. The whole of Judge Garvin's opinion 
in the Syracuse case was read into the Record, p. 492, and reprinted 
in Assembly Outline, 75. No facts or other reasons than this are given 
to establish the guilt of the five members under the Act. 



356 FREEDOM OF SPEECH 

Soviet in the United States; some one else, because he dis- 
liked the vote of Claessens against the military training of 
boys. Others might object on the ground that the party 
fostered the claims of conscientious objectors or worked for 
the repeal of the draft or opposed the conscription of labor 
or voted against large military appropriations. The range 
was large and every member could find a reason of his own. 
It was the Wilkes case over again : ^°® 

The very enumeration of so many grounds of expulsion implied 
their separate weakness and insufficiency; while it was designed 
to attract the support of members, influenced by different reasons 
for their votes. 

Few legal documents furnish more delightful reading than 
the Outline, as it is called, of " the case of the Assembly 
against the five Socialist Assemblymen," — the title is a sig- 
nificant comment on the impartiality of a tribunal which 
constitutes itself both judge and prosecutor. This makes 
it clearer than ever that the Socialists were not excluded 
for any personal unfitness but for the supposed principles 
of the party. Against Orr and De Witt as individuals, 
nothing whatever is said. Claessens and Waldman are 
charged with intemperate speeches, which " breathe in every 
word the spirit of treason and revolution with thinly veiled 
phrases to escape the prosecutions of the federal agents." 
In other words, because they spoke so as not to violate the 
Espionage Act, that makes it all the worse. Also Claessens 
is guilty of teaching at the Rand School. That is an insti- 
tution which circulates the decrees of Soviet Russia, and has 
been convicted of publishing Nearing's Great Madness. 
Also one of his fellow-instructors was imprisoned for lead- 
ing raids on churches. Obviously, Claessens " stands for the 
overthrow of our government." And Solomon at least has 
committed overt acts of undoubted enormity. 

In 1692 the chief accusers of the Salem witches were a 
club of young girls who sent more than one old woman to 
her death by telling how they had seen her drink their blood 

io£i May's Constitutional History, I, 316. 



WILKES AND HIS SUCCESSORS 357 

or cause a yellow bird to sit on the minister's hat where it 
hung on a peg in the pulpit."" In 1920 Ellen Chivers, a 
stenographer just under eighteen years old, testified that 
three years before when she was barely fifteen, she heard 
Solomon make a speech in Brooklyn, with an American flag 
and a red flag flying on his stand/" A detachment of sol- 
diers rode up recruiting and asked to borrow his platform. 
She heard Solomon reply, "Lend you my platform? Can 
you borrow my platform? Huh; the gutter is good enough 
for you." They spoke from their jitney and went on. Nor 
was this the worst. A band of music came by on a trolley- 
car, stopped about three minutes, and struck up the " Star- 
Spangled Banner." And then in her presence and in the 
presence, she declared, of two policemen, " Mr. Solomon 
turned up his coat collar, put down his hat, and pulled it 
over his eyes, spit on the American flag and sat down." 
And the police did nothing. 

The spy who is regularly employed by the government 
was brought into undesired publicity by the Colyer trial. 
The voluntary informer is also a recurrent feature of all 
prosecutions for opinion since the day of Titus Oates and 
beyond. This girl was a member of the American Anti- 
Socialist League and had attended weekly meetings for two 
years before she testified. She had not mentioned these inci- 
dents to any member of that society or to her sister or to 
any one else, until after the investigation began, when she 
wrote to Speaker Sweet, because she thought " it was the 
duty of any American to take the stand against one who 
has committed treason against their country." The two 
policemen on the spot afterwards swore that no such disloyal 
acts occurred. The Attorney General's brief reprints with- 
out question the testimony of Ellen Chivers. 

Another group of charges was presented to appeal to 
Assemblymen who were not entirely convinced by Miss 

110 Palfrey, History of New England, IV, 102; Hutchinson, History 
of the Province of Massachusetts Bay, II, 27. 

^^^ Assembly Outline, 71; Record, 705-723, for Chivers' testimony. 



358 FREEDOM OF SPEECH 

Chivers and to attack the Socialists who could not be ac- 
cused of such open disloyalty. Candidates of the Socialist 
Party were said to be bound by certain pledges, which might 
conceivably operate to ruin the country, and were so incon- 
sistent with their constitutional oath as to make it false. 
First, the National Socialist Constitution provides that So- 
cialist office-holders who vote to appropriate money for 
military or naval purposes shall be expelled from the party. 
The New York Constitution makes it the duty of the Legis- 
lature to maintain a minimum militia of 10,000 men. There- 
fore they have disqualified themselves to take the oath to 
support this Constitution. Even if this oath were not obli- 
gatory, they have made themselves ineligible by promising 
to take a course which if supported by a majority of the 
Assembly would destroy the entire military organization of 
the state and tend to expose state and nation to destruc- 
tion from its enemies without and within. The state's right 
of self-defense gives it the right to exclude such traitors. 
Their intention to disregard the constitutional provision 
about the minimum militia is shown by their opposition in 
previous sessions to laws giving extra pay for the National 
Guard and pay while in federal service, also to laws for the 
expulsion of alien enemies from teaching in the public 
schools, punishing the desecration of the flag, establishing 
military training for boys, and conscripting labor. The 
Attorney General neglected to add that they also voted 
against the establishment of the Lusk Committee. 

The Socialists replied that the Constitution was para- 
mount. Inconsistent party pledges were rejected by virtue 
of their oath as Assemblymen. The National Partj' plat- 
form naturally failed to consider the militia requirement of 
a particular state, and they were ready to carry out what- 
ever duty that requirement imposed. However, until some 
one knew better what it meant, other members of the As- 
sembly had no right to define this duty for them ^^^ or say 

112 That constitutional duties must be interpreted by the person ob- 
ligated under the sanction of his oflBcial oath. Ops. of the Justices, 



WILKES AND HIS SUCCESSORS 359 

that it included extravagant appropriations to maintain far 
more than the constitutional minimum of 10,000 men. If a 
question of maintaining that minimum were presented, they 
would do so. They were not obliged to vote extras or con- 
script boys. 

Still more flimsy is the charge that the Socialist legis- 
lators were to vote as a unit and obey the wishes of the 
party organization. This promise, the Republican Attorney 
General gravely explains, must not " be confused with party 
action in caucus where party men uniformly reserve the right 
to withdraw if a proposed measure violates their conscience 
or their patriotism or is not with party issues." ^^^ And 
then a few days later the Republicans proposed to displace 
Floor Manager Adler because he voted against the unseating 
of the five members. Nothing can be more touching than 
the indignation which the bare possibility of political control 
by outsiders inspired in the henchmen of New York's 
" invisible government " : ^^* 

It makes no difference what name you give, whether you call 
it Fenton or Conkling or Cornell or Arthur or Piatt, or by the 
names of men now liv'ing. The ruler of the state during the 
greater part of the forty years of my acquaintance with the 
state government has not been any man authorized by the con- 
stitution or by the law. 

The meat of the Outline is the portrayal of the iniquities 
of Socialism. This is a very different affair from the body 
of economic principles which is attacked by Carver, Taussig, 
and other economists, none of whom v^'as summoned as an 
expert by the prosecution. The Outline conceives it as " a 
Revolutionary Party, having the single purpose of destroy- 

56 N. H. 576 (1875); Andrew Jackson, in United States Bank veto, 
quoted by W. M. Evarts, Arguments and Speeches, I, 445. 

^'^^ Assembly Outline, 13. Cf. Bryce, Am. Commonwealth, 3 ed., 
I, c. XIX, p. 204. See Hillquit's remarks on the Roman augurs' wink. 
Socialist Brief, p. 22. I omit to discuss the charge that the Socialists 
were required to resign if they violated the party platform, as this was 
a dead-letter. 

114 Elihu Root, Addresses on Government and Citizenship, p. 202 (at 
the N. Y. Const. Conv. of 1916). 



360 FREEDOM OF SPEECH 

ing our institutions and government and substituting the 
Russian-Soviet government, ... an anti-national party 
whose allegiance is given to the Internationale and not to the 
United States." Its purposes, mass action and the general 
strike, are treasonable. For its crimes the five members are 
responsible, and more than that, for the acts of any other 
person in that party, whether or not he belongs to their 
particular faction. As Mr. Stanchfield, for the prosecution, 
openly stated : ^^^ 

The whole theory of this investigation rests upon the proposi- 
tion that the Socialist Party, of which the five members under 
investigation are confessedly, concededly members, has embarked 
upon a program that calls for the overthrow of our form of 
government, some assert by constitutional means, others by 
violence. Now, assuming that that program is the basic charge 
under investigation, then my argiunent runs along this line: 
That every pamphlet, every declaration, every speech, every 
statement of every men who is affiliated with or belongs to that 
party, not necessarily in a technical sense of belonging to it, but 
everybody who upholds those claims, who supports those princi- 
ples, who stands upon that platform, is bound by the speeches, 
the sentiments, the writings, the books, the publications of every 
other man affiliated with that association, whether they were 
present at the time when it was made or they were uttered, or 
whether they were absent. 

No person who has followed with any intelligence the pro- 
ceedings of the Socialist Party at the conventions of Sep- 
tember, 1919, or May, 1920, can doubt that that party is as 
much divided into factions as any other. Nevertheless, the 
five members were held responsible on Stanchfield's principle, 
not merely for the statements in the party platform but for 
the Debs speech at Canton, Ohio, statements in the Moscow 
manifesto, extracts from a book in Yiddish published by the 
Jewish Socialist Federation of America, all the articles con- 
tributed to the American Socialist, for everything that was 
said by speakers at meetings at which one of the assembly- 
men was present as well as for statements made in a letter 

116 i2«cord, 336. 



WILKES AND HIS SUCCESSORS 361 

by an organization to which he was bitterly opposed. This 
was guilt by association with a vengeance. 

And finally the Attorney General corrects one member of 
the Committee in his misapprehension of thinking that the 
duty to disqualify for disloyalty rests with the people of the 
district. This, he says, misconceives the representative as 
an officer of the district and not of the state, and he shows 
the gravity of the error by an extract from Burke's " Speech 
to the Sheriffs of Bristol " : 

You choose a member indeed; but when you have chosen him, 
he is not a member of Bristol, but he is a member of Parliament. 

" Thoughts on the Present Discontents " had been more to 
the point. And, quoting more political scripture, he warns 
the Committee in Madison's words against that sectionalism 
which leads state legislators to sacrifice the comprehensive 
and permanent interest of the state to the particular and 
separate views of the counties or districts where they re- 
side. 

When such testimony and arguments were admitted, the 
result was a foregone conclusion. The Committee recom- 
mended expulsion, the Assembly characteristically waited 
until April 1st, which was too late for a re-election, and 
then disregarding the maiden speech of Theodore Roose- 
velt, who, with all his inherited abhorrence of Socialism and 
pacifism, refused to condemn the Socialist Party as a con- 
spiracy for a state of mind, expelled the five members by an 
overwhelming vote.^^^ The Legislature proceeded to enact 
the bills drafted by the triumphant Lusk Committee, which 
not only throttle the Rand School, but exclude from the 
definition of a party under the Election Law any organiza- 
tion which advocates: 

Principles, doctrines, or policies that tend, if carried into effect, 
to the destruction, subversion or endangering of the existing 
governments of the United States and of the State of New 

no New York Times, April 1st and 2nd. 



362 FREEDOM OF SPEECH 

York, and of the rights, privileges and institutions secured under 
such constitutions. '^^^ 

Any person who is a member of such organization is made 
ineligible for public office. And then leaving the governor's 
welfare bills untouched the New York Legislature adjourned, 
and Speaker Sweet proclaimed the session " a victory for 
undivided Americanism." 

Surely this event ought to free us from the tyranny of this 
word, which seems like some magic helmet to render the 
true qualities of the wearer invisible to those around him. 
The men who use the ideals of the founders of our Republic, 
not as an inspiration for high-minded action on their own 
part but as a test by which they may condemn and imprison 
and disfranchise their fellow-citizens, are as unpardonable 
as the persecutors who used the teachings of the Gospels to 
send men to the stake in this world and hell-fire in the next. 
Years ago William Graham Sumner commented: 

Wlio dares say that he is not " American " ? Who dares 
repudiate what is declared to be Americanism? It follows that 
if anything is base and bogus it is always labeled American. If 
a thing is to be recommended which cannot be justified it is put 
under " Americanism " . . . . Then we see what Americanism 
and patriotism are. They are the duty laid upon us all to 
applaud, follow and obey whatever a ruling clique of newspapers 
or politicians chooses to say or wants to do.^^^ 

The absurdity to which our greatest state has descended 
in its frantic desire to suppress disloyalty cannot be en- 
tirely explained by the fear of Bolshevism, because the 
danger of that is far greater in European countries, which 
have large groups of Socialists in their legislatures unmo- 
lested. Nor is it entirely due to the activities of organiza- 
tions like the Lusk Committee. Something more is needed 
to account for the statement of the New York Times that 
the expulsion of the Socialists was as clearly and demon- 

117 2 Revieii), 422. Governor Smith vetoed all the Lusk bills in a 
stinging message. 

lis Folkways, p. 177. 



WILKES AND HIS SUCCESSORS 363 

strably a measure of national defense as the declaration of 
war again Germany."® Speaker Sweet and his associates 
would not have acted as they did had they not been assured of 
wide support, especially in the country districts. Much of 
the panic-stricken dread of Socialism is due to the sentiment 
that we must have unanimity of thought in this country. 
The surprising uniformity of American life has long excited 
attention from foreign observers.^"" Until recently we have 
had only a middle class without any proletariat or large 
group of extremely wealthy men. Since the issues of the 
Civil War died away, whatever few fundamental differences 
in opinion have existed have rarely coincided with party 
lines. A French writer in his biography of President 
Wilson remarks that a foreigner on coming to this country 
does not understand our political parties. In Europe every 
party has a platform which represents a definite policy, like 
monarchy, clericalism, Socialism. He finds nothing of the 
kind here. Why do we have two parties when they do not 
differ.'* Halevy explains that the Republican and Demo- 
cratic parties are like two great department stores, such as 
the Bon Marche and the Louvre. Both sell very much the 
same things. Some people go entirely to one, some go en- 
tirely to the other, some go first to one and then to the 
other. They are there because they have always been 
there.^^^ But now a new party has entered the field which 
has real issues, vital one way or the other to all of us and 
hence the antagonism of its opponents is immediate and 
bitter. When it shows signs of gaining, real strength then 
there is an energetic effort to stamp it out, which likes to 
base itself on patriotism and self-preservation. 

It is not by such methods that the nation can be saved 
from the evil tendencies of any doctrine. The great strength 
of our argument against violent-talking radicals in the past 
has been that we could say to them: " It is true that in the 

119 Editorial of April 2na. 

120 See Bryce's American Commonwealth, II, c. CXII. 

121 Daniel Halevy, Le President Wilson, Paris, 1918, p. 109. 



364 FREEDOM OF SPEECH 

countries that you came from you naturally resorted to 
violence because you had no vote and could not abolish the 
abuses to which you objected. It is not so in this country. 
If you want a change, go and vote for it, vote for men 
who have promised to bring it to pass." The New York 
Assembly has deprived us of this argument in the state 
where the left wing is strongest. It has appealed to force 
as the normal method for settling conflicts between ideas. 
It has disregarded the counsel of its wisest men to take that 
of the Lusk Committee, whose whole existence has been a 
violation of constitutional rights. It has disfranchised 
60,000 American citizens on the basis of a caricature of 
Socialism and the testimony of Ellen Chivers. It has re- 
pudiated government by representation and substituted gov- 
ernment by misrepresentation. 



CHAPTER VII 

FREEDOM AND INITIATIVE IN THE SCHOOLS 

The Liberty is likely to survive longer than anything else that 
I have written, because it is a kind of philosophic text-book of 
a single truth, which, the changes progressively taking place in 
modern society tend to bring out into ever stronger relief: the 
importance, to man and society, of a large variety in types of 
character, and of giving full freedom to human nature to expand 
itself in innumerable and conflicting directions. — John Stuart 
Mill, Autobiography . 

The state which refrains from fighting revolutionary doc- 
trines by force except in times of clear and present danger 
is not helpless, for besides abolishing some causes of discon- 
tent, it can employ education to establish among its citizens 
faith in progress through law. If, however, the advocates 
of revolution by violence should share in the control of 
education, the state would seem to be surrendering its last 
stronghold. Such a possibility is indicated to many by the 
presence of radicals among public school teachers. The 
situation is complicated by factors which lie outside the 
province of this book, like the claim of teachers to participate 
in deciding the dismissal of one of their number. Questions 
of the fitness of some particular teacher to teach, instead of 
being settled purely on their merits, have become storm- 
centers of conflict for employees, trade-unions, and the press. 
On one side, some teachers who are dismissed for good rea- 
sons are believed by their friends to be ousted for political or 
economic views. On the other side, the authorities assert 
that any one who holds certain views is ipso facto unfit to 
teach. For example. Dr. John L. Tildsley, while Associate 
Superintendent of Schools in New York, declared,^ " that 
men or women who are Marxian Socialists, who believe in 

1 The Public and the Schools, May 17, 1919, Public Education Assn., 
N. Y. 

366 



i366 FREEDOM OF SPEECH 

the Communist Manifesto, have no right to be in the school 
system because such teachers believe in the overturn by force 
of those elements on which our civilization is based." The 
student of freedom of speech is concerned with the compara- 
tive redness of these proscribed views, and with the question 
whether a teacher is to be dismissed for merely believing in 
them or only if he expresses them to his classes. The follow- 
ing reflections grow out of the New York controversy, but 
merely endeavor to suggest some controlling principles. Since 
the problem does not involve the legal questions which have 
received attention in previous chapters, it may be helpful, at 
the cost of some repetition, to restate in non-technical lan- 
guage the main conclusions of this book. 

When I heard Dr. Tildsley say he believed in freedom of 
speech I felt glad that we stood in the same position. But 
when he went on and said no one who favored Marxian 
Socialism should teach in the schools, it seemed to me a 
little like a character in James Russell Lowell, a gentleman 
of the Biglow Papers, who said : " I du, believe in Freedom's 
cause, Ez fur away as Payris is." Or something like the 
Irishman who inquired of his friend, " What is this Socialism 
that I hear so much about? " Mike said, " Why, Pat, don't 
you know what that is.'' If you had a million dollars, you 
would give me half, wouldn't you ? " " Sure, I would ! " 
*' Well, that's Socialism." Pat said, " That is a grand 
thing ! Tell me some more about it." " Well," replied Mike, 
" If you had ten dollars, you would give me half, wouldn't 
you ? " " I would not ! I've got ten dollars t " 

We all believe in freedom of speech, but the question is, 
do we believe in it when it is disagreeable to us.'' After all, 
if freedom of speech means anything, it means a willingness 
to stand and let people say things with which we disagree, 
and which do weary us considerably. A good deal of the 
public discussion on the matter turns on the use of the word 
" rights." Those who want to speak freely insist on the 
right of freedom of speech ; and, on the other hand, those 
who wish to restrict speakers talk of the right of the gov- 



FREEDOM AND INITIATIVE IN SCHOOLS 367 

ernment to carry on war and the right of the government 
to maintain order, and there we have a deadlock. Each side 
says it is in the right, and that does not bring us anywhere 
at all. I think we will do well to get away from this word 
" right " entirely, and look at it from another point of view, 
not from the legal point of view, but simply from the point 
of view of the individual human being who wants to speak 
and the great group of human beings which constitute the 
society in which he speaks. That is, we have his individual 
interests and the interests of society at large. 

First, we have the individual interest in freedom of speech. 
" Good," as Emerson says, " does not mean good to eat and 
good to wear." It means to live our own lives as fully as 
we can and to bear witness to the truth for which we came 
into the world. I did intend at this point to quote from 
Jean-Christophe, by Romain Rolland, but this is one of the 
proscribed books for recommending which to his pupils a 
teacher was dismissed from the New York high schools, and 
so I will refrain. But instead, I will take a book which was 
written three thousand years ago, which is fairly safe — the 
Apology of Socrates: 

If in acquitting me you should say: "We will not put faith 
this time, O Socrates, in your accusers, but will let you go, on the 
condition, however, that you no longer spend your time in this 
search nor in the pursuit of wisdom, and that if you are caught 
doing either again you shall die " — if, I say, you were to release 
me on these conditions, I should say to you: " Athenians, I love 
and cherish you, but shall obey the God rather than you; and as 
long as I draw breath and have the strength, I shall never cease to 
follow philosophy and to exhort and persuade any one of you 
whom I happen to meet. For this, be assured, the God commands ; 
and I believe that there has never been a greater good in the 
state than this my service to the God; for I do nothing but go 
about persuading you, both young and old, not to let your first 
thought be for your body or your possessions, nor to care for 
anything so earnestly as for your soul." And, Athenians, I should 
go on to say: " Either hearken to my accusers or not, and either 
acquit me or not ; but understand that I shall never act differently, 
even if I have to die for it many times." 



368 FREEDOM OF SPEECH 

That is the individual interest in free speech. Over 
against that we have to set the social interests — the interest 
in the safeguarding of the government and the nation from 
foreign attack, the interest in order, without which all our 
individual interests would be lost, the interest in moral and 
decent living, and the interest in the training of the young, 
which is the main thing that we have to consider here. As 
between that individual interest and those social interests, 
it seems easy to conclude that the individual interest should 
always give way; that, as is often said, freedom of speech 
means liberty, not license ; that we must not advocate any- 
thing that is wrong, anything which interferes with the so- 
cial interests in order, and so on. But we have to remember 
that not only do we have the social interest in order, and 
in the education of the young, and in morals, but that free- 
dom of speech is itself a social interest ; that one of the pur- 
poses for which society exists just as much as for the main- 
tenance of order is the discovery and the spread of truth. 
' Another member of the Lowell family, now President of 
Harvard, said in his report to the Corporation on the sub- 
ject of freedom of speech, which every Harvard professor 
can regard as a Magna Charta: 

Education has proved, and probably no one would now deny, 
that knowledge can advance,' or at least can advance most rapidly, 
only by means of an unfettered search for truth on the part of 
those who devote their lives to seeking it in their respective 
fields, and by complete freedom in imparting to their pupils the 
truth that they have found. This has become an axiom in higher 
education, in spite of the fact that a searcher may discover error 
instead of truth, and be misled, and mislead others, thereby. 
We believe that if enough light is let in, the real relations of 
things will soon be seen, and they can be seen in no other way. 

We cannot be sure that any statement is either wholly 
true or wholly false. We cannot separate the truth at once. 
We have to leave the separation on the whole to time. Any 
subject may have some bad features, but we must let the 
wheat grow with the tares until the time comes when the 
crop is ripe, and we can decide between them. If what is 



FREEDOM AND INITIATIVE IN SCHOOLS 369 

said does dangerously and directly interfere with those other 
social interests in order and in education of the young, then 
speech must be restrained. But until that time comes — 
and we ought to be sure that it has come — we should be very 
careful how we interfere. Because it is by the contest of 
argument that the truth is found. Argument on one side 
and argument on the other is the best way that we have 
on earth to bring about truth. Once force is thrown into 
the scale, once the pressure of government is used on one 
side or the other, it becomes simply a matter of chance on 
which side it is used, and then the natural ability to decide 
the matter by argument is altogether gone, I say it is just 
a matter of chance. For instance, force here is to be thrown 
against Marxian Socialism, a doctrine with which I do not 
at all agree; but, in North Dakota it is to be thrown on 
the side of something that comes pretty near Marxian So- 
cialism. Under a populist regime in Kansas the State issued 
textbooks that had to be used in the schools, which devoted 
more time to the " crime of '73," by which free silver was 
abolished, than to the Civil War. It just depends on what 
government you have. The administration in Washington is 
now publishing textbooks for use in the schools.^ When we 
have a Republican administration we may have a different 
kind of textbook. Therein lies the difficulty with Dr. 
Tildsley's argument that teachers must teach and think ac- 
cording to the decision of a majority in Congress. It is 
true that a majority decision is the best way of determining 
how the government shall act, but it i§ not the best way of 
deciding what is right. We have to act on the decision of 
the majority, but the minority are not thereby precluded 
from doubting the wisdom of the decision, and it may even- 
tually be that they will again become the majority and will 
put an end to that particular measure. 

If the majority of Congress declares war, the minority 
must realize that we are at war, but they are not necessarily 

2 " A Case of Federal Propaganda in our Public Schools," Natl. 
Industrial Conference Board, Feb., 1919. 



370 FREEDOM OF SPEECH 

bound to believe that the war is right, and why should they 
not endeavor to stop it by argument when they believe that 
it has gone far enough? Once again, we have got to 
balance the interests in this matter — the public interest in 
the discovery of truth against the public interest in the 
education of the young and protection against invasion. 
And it is very necessary that the balancing should be done 
by people who realize the importance of freedom of speech. 
Freedom of speech ought to weigh very heavily in the scale. 
It is all very well to say that religious views should be 
free ; that scientific investigation should be free ; but that 
political opinion cannot be free, because that is dangerous ; 
that Marxian Socialism is so dangerous that it cannot be 
free. Three centuries ago, people felt just as strongly 
about religious views and about scientific investigation as 
they do now about political investigation. They felt just 
as sure that any view which was not in accord with the 
orthodox religion would unsettle the very foundations of 
morality, and that consequently no one should teach in the 
schools who was not an orthodox Christian. And they felt 
just as sure about scientific investigation; that if a man 
said the earth went around the sun, he should not be trusted 
anywhere. If they felt so strongly about it then, and were 
wrong, how can we be sure that we are right if we feel the 
same way about political investigation? On that we must 
have just as much freedom of investigation as in the old 
days was necessary for scientific discoveries. It is easy 
enough to think that everything that is different from our- 
selves must necessarily be dangerous. It is easy to believe 
that political ideas which are different from our own must 
necessarily advocate the use of force. We say, how could 
Socialism come into existence except by violence, because it 
is so objectionable. I do not believe in it, and hope it will 
not come into existence. But I do not see why it may not be 
adopted by popular suffrage, the same as other ideas. We 
ought not to assume it can only win by violence, simply be- 
.cause it differs from our views. In the old days they used 



FREEDOM AND INITIATIVE IN SCHOOLS 371 

to get rid of objectionable persons on the ground that they 
would overthrow society. They got rid of Socrates by say- 
ing he was a corrupter of the youth. They got rid of Jesus 
by saying he planned to upset the Roman state, and they 
said it is more expedient that one man should die than that 
the people should perish. It is more expedient, now, that 
one man should be put in prison or lose his job — it is just 
the same argument we use — than that the people should 
perish. But let us be sure that the people, after all, are 
going to perish. 

In war time, the problem is perhaps peculiar. Everybody 
is very much occupied. We haven't time to think things 
over, and people will say, " We don't care what sort of war 
it is. My country, right or wrong. Let us go ahead." It 
is something like the colored man who went with his son to 
rob a hen coop, and sent his son inside. The boy turned 
and stuck his head out of the door and said, " Father, am 
dis right?" And the father said, " Dat am a great moral 
question. We will argue it out at home dis evening. You 
get busy and hand out dem chickens." 

I think this war was right, but the people who opposed 
it, who were wrong this time, may be right next time, as 
they were right in the Mexican War. They may be right 
next time, and we ought to be careful how we require every 
person who teaches in the schools to support every war that 
is going on. But now we have peace. We cannot postpone 
the discussion of problems until the " war " is over. We 
shall have to meet them as they arise. Dr. Tildsley spoke of 
our being under the spell of words. There is one word we 
are all under the spell of at the present time, and that is, 
Americanism. What does it mean? We are afraid of some- 
thing. We were afraid of Germany, but we got over that. 
What is it we are scared about now? We are scared of 
Russia. Why? Is it because Russia has a different po- 
litical system from ours? She had a different political sys- 
tem under the Czar, and we were perfectly willing to discuss 
his system. Is it because the people have a tremendous 



372 FREEDOM OF SPEECH 

control there? We have been perfectly willing to discuss the 
initiative and the referendum for years. Is it because they 
have a restrictive franchise there? We have a restrictive 
franchise in certain states where half the adult population 
is not allowed to vote. In Rhode Island, where I used to 
live, the men who are most scared of Bolshevism are the men 
who are most ready to keep the property franchise under 
which people who have less than $134 cannot vote for many 
important offices. What we are really scared of is not 
something political ; it is economic. We are afraid of a 
system which takes property from the people who have in- 
herited it or who have earned it, and that is an economic 
question. It is not Americanism against something else. It 
is simply a choice of two economic systems, and we have 
got to have that controversy discussed if we are going to 
decide it rightly. 

If Americanism means anything, it means free speech, 
right from the start. The Pilgrims came to Massachusetts 
to get it, and Roger Williams left Massachusetts, not only 
because he had his own religious views but because he at- 
tacked property rights in land not purchased from the 
Indians. Thomas Jefferson is usually considered a good 
American, but he said things about the desirability of rebel- 
lion that would make us all shudder. Alexander Hamilton 
argued for free speech here in New York, and James Russell 
Lowell called the Mexican War murder. The abolitionists, 
men whom we all honor to-day, believed in Americanism — 
freedom to criticise the government of their day and the 
institutions of property of their day, which included a tre- 
mendous form of property — the property in negro slaves. 
I believe in private property myself, but because I believe in 
it I want to know why it ought to be supported. 

And now, for the problem as it affects teachers. There 
are two views of teaching. One regards teaching as a sort of 
handing out canned goods to the pupils, so much canned 
goods, so much knowledge. Well, if it is a canned goods 
business, we may need a Pure Food Law to make sure the 



FREEDOM AND INITIATIVE IN SCHOOLS 373 

children get the right brand of " corn." But this is not the 
real theory. That was held by President Gilman of Johns 
Hopkins, when he took Professor Gildersleeve into a bare 
room and said, " Now, radiate." We have got to have the 
kind of teachers that radiate. For that we not only need 
contented teachers, but we must have teachers who think 
for themselves. 

In a pamphlet issued in the New York school controversy, 
the " Reply of the Superintendents," is a statement that 
teachers should be obedient, and to support it a quotation 
about the sort of obedience that is necessary in the army 
and navy. Of course, teachers to some extent have to 
obey, but the kind of obedience we ought to get from them 
is far from the kind they get in the army and navy. In an 
autocracy, they might get along without teachers of inde- 
pendence. But this country has to be run by the people 
in it, and they are the people who are taught in the schools ; 
and if the teachers cannot think for themselves, the pupils 
cannot think for themselves. They cannot discuss merely 
the questions of the past. They must discuss the critical 
problems of the present time if they are to solve them. 

In England there is a leisure class to carry on the gov- 
ernment. We cannot depend on that. Now, to what branch 
of citizens should we turn more for help in these matters 
than the teachers.'* And there is no class of people who are 
more injured by repression than teachers. If you say to 
any other man that he must not express his ideas on political 
questions, he can at least devote himself to his job, but if 
~you confine the teacher in his thinking, what do you leave 
him.'' That is his job, to think. 

People say that the teacher is employed by the govern- 
ment, and ought to agree with the government which pays 
him. The courts are just as much a part of the government 
as the schools — more so, for we have private schools, but 
we do not have private courts. Do we say that every one 
in the court must agree with the government.'* Do we say 
that the judges must always decide in favor of the govern- 



p74i FREEDOM OF SPEECH 

ment? Not at all! They often decide against it. We retain 
lawyers to defend criminals whom the government accuses. 
It is even suggested we should have one lawyer to do so all 
the time. Progressive manufacturing corpox'ations employ 
men just to criticise the products of the corporation and see 
how they can be better made. The teacher may be serving 
the state even while he criticises it. 

Of course, we have special considerations in the schools. 
We have this social interest in favor of the education of 
children. We cannot let everything be said in the schools 
that we might let be said outside. A teacher might be 
allowed to stand on his head at home, but not in school. 
In the same way there is much he ought not to do there 
in the way of free speech. If he taught that all boys and 
girls at sixteen were of a proper age to marry, he certainly 
ought to lose his position. He must adapt his discussion 
to the maturity of the pupils before him. And we certainly 
can require concentration on liis subject; we can require 
judgment ; we ought to demand of a teacher that he should be 
a master of his subject and a man of sound common sense. 

But, on the other hand, you cannot control the mind of 
an expert. You cannot stand over Galileo and say " Use 
your telescope, but do not find that the earth goes around 
the sun." You cannot stand over Pasteur and say, " In- 
vestigate spontaneous generation, but do not discover that 
spontaneous generation exists." You cannot stand over a 
man that deals with economics and say, " Find out that eco- 
nomics exists according to this or that system " ; or, if he 
deals with history, say to him, " Find out that the men who 
are in power in Russia are a gang of thugs." If he finds 
it out, all right ; but you cannot force him to do so, and you 
cannot force him to teach lies. Outside of the classroom he 
should be even more free. There he is a citizen, and as the 
New York Constitution says, every citizen may safely speak, 
write, and publish his sentiments on all subjects, being respon- 
sible for the abuse of that right; and no law shall be passed 
to restrain or abridge the liberty of speech or of the pressy 



FREEDOM AND INITIATIVE IN SCHOOLS 375 

Be sure that the right is abused. Be sure that freedom 
of speech weighs much in the scale. I think if every board 
which had to pass on the removal of a teacher would first 
read Milton's Areopagitica and Mill on Liberty, that some 
of the decisions would be very different ; because they would 
see that, after all, freedom of speech is just as important as 
the maintenance of order. 

Why are we so worried.'' Why are we so scared? Have 
we no confidence in the arguments that can be used against 
these radical ideas.'' Parents argue on the other side, and 
we have with us the army and the police, and everybody 
who has a savings bank account or a life insurance policy. 
After all, the dangers of rebellion are not very great, unless 
our case is very weak, and I do not think it is. 

Finally, repression will produce just the kind of spirit 
in the teachers that we want to get rid of — that is, the 
revolutionary spirit. The French experience in this matter 
has been very instructive.^ There the government threw its 
force against religion. Teachers were dismissed because they 
went to church. Teachers were dismissed for attacking the 
Prefect of their department. The state held a general 
inquisition into the opinions of all the teachers, a cabinet 
minister saying, " The government will not surrender the 
right to know the attitude of its servants toward the repub- 
lic." And they even had a law that government officials, 
including teachers, should wear a cheerful countenance on 
national holidays. What was the result.? The teachers of 
France, although by birth, by training, by disposition af- 
filiated with the middle class rather than the working class, 
have formed a revolutionary trade-union and affiliated them- 
selves with the syndicalist organizations of France. 

It is all very well to say that we ought to be loyal to the 
state. What do we mean by the state? After all, it comes 
right straight down to the government that we deal with, 
and the government comes down to the men that we deal 
with, which means the educational authorities, and those who 
have power to put us in prison, and if those men do not 

3 H. J. Laski, Authority in the Modern State, c. V. 



376 FREEDOM OF SPEECH 

stand for the best things we stand for, — for the development 
of mind and spirit and the search for truth, we begin to 
wonder whether, after all, that government ought to endure, 
and whether we do not want a government which will stand 
for the things that we believe in. So it becomes important 
that the men who constitute the government, who, after all, 
are really the state, should stand for these things. We can- 
not love the state as a mystical unity, when that unity as we 
actually face it prevents us from living a true human life. So 
that, in order to make people loyal to the state, you must 
make the state a sort of thing that they want to be loyal to. 

We have got to take risks. Of course, it is not perfectly 
safe to allow teachers to be free. There ought to be this 
balancing of youth against truth. But there are plenty of 
risks that we take in life. We let our children go on the 
street although they may be run over by automobiles and 
trolley cars. We do not keep them home until they are 
twenty-one years of age. In the same way, we might like 
to leave them until a little later before we discuss some of 
these economic problems, but then they are out at work, and 
it is too late. We have got to take them when we can get 
them. And even if an occasional teacher does speak very 
radically, that does not mean that high school students will 
believe all he says. If we go back to the time when we were 
sixteen, we remember the keenness with which we discussed 
those problems. We did not take everything the teacher said 
for granted, and the more he said, the more we were likely 
to oppose him. 

We cannot lead sterilized lives. Think of the chances 
America took by allowing people with very little education 
to vote, and yet that is a risk we are ready to run. Democ- 
racy is not a water-tight compartment. It is a great adven- 
ture, and in order to prepare people for that adventure we 
have to teach them to think for themselves on the prob- 
lems they will have to face when they grow up. It is not 
simply teaching them the ideals of the day, — we must train 
them to make the ideals of to-morrow. 



APPENDIX I 

BIBLIOGRAPHY ON FREEDOM OF SPEECH 

Note: This Bibliography is far from a complete list of even the 
modern material in the English language. No Continental literature is 
included and information about religious liberty must be sought else- 
where. The purpose is to cover only the topics of the book. 

A. General and Histoeical (Chapter I) 

The legal meaning of freedom of speech cannot properly be deter- 
mined without a knowledge of the political and philosophical basis of such 
freedom. Four writings on this problem may be mentioned as invaluable: 
Plato's Apology of Socrates; Milton's Areopagitica; the second chapter of 
Mill, On Liberty; and Walter Bagehot's essay, " The Metaphysical Basis 
of Toleration." The second chapter of J. F. Stephen, Liberty, Equality, 
Fraternity, has an important critique on Mill. See, also, J. B. Bury, 
A History of Freedom of Thought, the first and last chapters; Grote, 
Plato, Chap. VI; Graham Wallas, The Great Society, 195-98. The 
relation of freedom of thought to political progress is discussed by same, 
"The Price of Intolerance," 125 Atlantic 116 (January, 1920); H. J. 
Laski, Authority in the Modern State, passim; same, "The Temper 
of the Present Time," 21 Neio Republic 335 (February 18, 1920). 
Francis Hackett, "The Invisible Censor," 21 New Republic 11 (Decem- 
ber 3, 1919), sketches the psychology of suppression. For a caustic 
point of view, see Fabian Franklin, " Some Free Speech Delusions," 
2 Unpopular Rev. 223 (October, 1914). The difficulties of the problem 
as seen from actual experience on both sides are presented in Viscount 
Morley's Recollections. 

By far the best textbook on this and the other civil rights is Cooley, 
Constitutional Limitations, 7th ed.; Dicey, The Law of the Constitution, 
8th ed.. Chaps. VI and VII gives the English law of freedom of speech 
and assembly. 

The best discussion of the legal meaning of " Freedom of the Press 
in the United States " will be found in an article under that name by 
Henry Schofield, in 9 Publications of the American Sociological Society 
67 (1914), This volume is devoted entirely to "Freedom of Communi- 
cation," and contains several valuable papers on different aspects of 
the problem. Other general legal articles are: "The Jurisdiction of the 
United States over Seditious Libel," H. W. Bikl6, 41 Am. L. Reg. 
(n. s.) 1 (1902); "Restrictions on the Freedom of the Press," 16 
Hari\ L. Rev. 55 (1902); "Free Speech and Free Press in Relation to 
the Police Power of the State," P. L. Edwards, 58 Cent. L. J. 383 
(1904); "Freedom of Speech and of the Press," 65 Univ. of Pa. L. Rev. 
170 (1916) ; Joseph R. Long, " The Freedom of the Press," 5 Va. L. Rev. 
225 (1918). Freedom of speech is discussed by Dean Pound as an 
interest of the individual in his " Interests of Personality," 28 Harv. 
L. Rev. 445, 453 (1915); and as an alleged bar to injunctions of libel in 
his "Equitable Relief against Defamation and Injuries to Personality," 
29 Harv. L. Rev. 640, 648 (1916). For the technique of political trials, 

377 



378 APPENDICES 

see Robert Ferrari, " Political Crime and Criminal Evidence," 3 Minn. 
L. Rev. 365 (1919); "Political Crime," 20 Col. L. Rev. 308 (1920); 
"The Trial of Political Criminals Here and Abroad," 66 Dial 647 
(June 28, 1919). Much useful material is collected in the writings 
of Theodore Schroeder, of which a bibliography by N. E. Sankey-Jones 
is published by the New York Free Speech League, 1919. Recent 
articles by him are " A Psychologic Study of Judicial Opinions," 6 Cal, 
L. Rev. 89 (1918); "Political Crimes Defined," 18 Mich. L. Rev. 30 
(1919). 

Origins of the First Amendment: 

The history of freedom of speech in America has not yet been fully 
investigated, but Clyde A. Duniway, The Development of Freedom of 
the Press in Massachusetts, Cambridge, Harvard University Press, 
1906, is extremely useful for the Colonial period. Max Farrand, 
Records of the Federal Convention, gives material on the proposed free 
speech clause, H, 334, 340, 341, 545; III, 122, 256, 290, 595, 599, 609. 
The state debates on this clause are in Elliot's Debates (2d ed., 1836), 
I, 359, 360, 362, 369, 371, 375; II, 424, 511, 537; III, 411, 414, 415, 
431, 551; IV, 159, 175, 209, 301, 302. J. B. McMaster and F. D. Stone, 
Pennsylvania and the Federal Convention, n81/-1788, Hist. Soc. of 
Penn., 1888, has contemporary press discussion. 

English History and Law: 

Much light is thrown on the problem by sedition trials in England, 
before our Revolution and during the French Revolution. The best 
account of these is in T. Erskine May, 2 Constitutional History of 
England, 2d ed., 1912, Chaps. IX-X, summarized by Charles A. Beard in 
16 New Republic 350 October 19, 1918). See, also, 2 Stephen, History 
of the Criminal Law, Chap. XXIV; Graham Wallas, Life of Francis 
Place, N. Y., 1919; Philip A. Brown, The French Revolution in Eng- 
lish History, London, 1918; G. O. Trevelyan, The Early History of 
Charles James Fox, relates Wilkes and Junius controversies. See bib- 
liography in J. F. Rhodes, History of the United States, IV, 233 note. 

For the modern law: F. M. Anderson, "The Law of Sedition in the 
British Empire," House Judiciary Hearings, p. 273; H. J. Laski, "The 
Fundamental Law in England, 31 Harv. L. Rev. 296 (1917). Canada: 
A. V. Thomas, "Quoting Isaiah in Winnipeg," 110 Nation 850 (Januarij* 
3, 1920); J. A. Stevenson, "A Set-back for Reaction in Canada," llu 
ibid. 292 (March 6). 

Sedition Act of 1798: 

Frank Maloy Anderson, "The Enforcement of the Alien and Sedi- 
tion Laws," Ann. Rep. Am. Hist. Assn. (1912) 115; same, "Contem- 
porary Opinion of the Virginia and Kentucky Resolutions," 5 Am. 
Hist. Rev. 45 (1900); Albert J. Beveridge, Life of John Marshall, 
vols. II and III, passim, is vivid and collects much contemporary 
material. The four reported prosecutions are in Wharton's State Trials, 
—Lyon, 333 (1798); Cooper, 659 (1800); Haswell, 684 (1800); Cal- 
lender, 688 (1800). Wharton, 23, narrates the events leading up to 
these statutes; see, also, Channing and other standard histories. For 
references to the Sedition Act in Jefferson's letters, see the edition of 
Paul Leicester Ford, VII, 245: "The object of that [the bill] is the 
suppression of the whig presses;" VII, 246; VII, 266, on unconstitu- 
tionality; VII, 283, "The alien and sedition laws are working hard;" 



APPENDICES 379 

VII, 289, 311, 336, 350, 364, 365, 366, on popular opposition to the acts; 
VII, 367, 371, 483, on continuation of Sedition Law by Congress; VIII, 
64, 66 if., 308 ff ., on unconstitutionality and pardons ; IX, 456, on dis- 
missal of prosecutions. Madison's Report on the Virginia Resolutions 
is reprinted in Elliot's Debates. 

Reference Books: 

Soule's Lawyer's Reference Mawual, for abbreviations of legal re- 
ports. 

New York Times Index, issued quarterly, is very valuable for finding 
press accounts of prosecutions, etc. 

B. The Wak (Chapters II and III) 

Important decisions under the U. S. Espionage Act are printed in 
the Federal (Fed.) and United States Supreme Court Reports (U. S.). 
The latter are in public and university libraries. The Bulletins of the 
Department of Justice on the Interpretation of War Statutes (cited 
herein as Bull. Dept. Just.), Nos. 1-204, contain many charges not 
otherwise reported. Appendix II, infra, tells where all reported pros- 
ecutions can be found. Supreme Court records and briefs are in the 
Harvard Law School Library. The cases before July, 1918, are col- 
lected by Walter Nelles, Espionage Act Gases, with Certain Others 
on Related Points, Natl, Civil Liberties Bureau, N. Y, This has 
some state cases, and gives a careful analysis of the decisions. The 
Bureau has also published War-time Prosecutions and Mob Violence, 
involving the rights of free speech, free press, and peaceful assem- 
blage (from April 1, 1917, to March 1, 1919), containing an annotated 
list of prosecutions, convictions, exclusions from the mail, etc. It has 
prepared in MSS. " A Memorandum Concerning Political Prisoners 
Within the Jurisdiction of the Department of Justice in 1919," for the 
Attorney General; and "Memorandum to the President of the United 
States as to Persons Imprisoned for Violation of the War Laws" 
(copies in Harvard Law School Library). 

The enforcement of the Espionage Act and similar statutes is offi- 
cially summarized in the Reports of the Attorney General for 1917, 
1918, and 1919, with lists of prosecutions and results, and circulars 
issued to district attorneys. See, also " Suggestions of Attorney-Gen- 
eral Gregory to Executive Committee in Relation to the Department of 
Justice," 4 Am. Bar. Assn. J. 305 (1918). An invaluable account of 
the war work of the Department is, John Lopd O'Brian, "Civil Liberty 
in War-time," 62 Rep. N. Y. Bar Assn. 275 (1919). A military view 
of censorship is " The Proper Relations between the Army and the 
Press in War," Army War College, November, 1915. 

The American Labor Year-Book, 1919-20, Rand School, N, Y., nar- 
rates several prosecutions in detail. 

The issues involved in the current decisions are presented in non- 
technical form by these articles: "Freedom of Speech," Z. Chafee, Jr., 
17 New Republic, 66 (November 16, 1918) ; Ralph Barton Perry in a book 
review, 7 Yale Rev. 670 (April, 1918); "The Supreme Court vs. the 
Supreme Court," 22 New Republic 235 (April 21, 1920). 

Legal Articles on the War: 

"Freedom of Speech and of the Press," W. R. Vance, 2 Minn. L. 
Bev. 239 (1918); "The Espionage Act Cases," 32 Harv. L. Rev. 417 



380 APPENDICES 

(1919); "Threats to Take the Life of the President," 32 Harv. L. Rev. 
724 (1919); "The Vital Importance of a Liberal Construction of the 
Espionage Act," Alexander H. Robbins, 87 Cent. L. J. 145 (1918); 
" Sufficiency of Indictments under the Espionage Act," 87 Cent. L. J. 
400 (1918). The Espionage Act is one of the topics covered by Judge 
Charles M. Hough, "Law in War Time— 1917," 31 Harv. L. Rev. 692, 
696 (1918). Thomas F. Carroll, "Freedom of Speech and of the Press 
in War Time," 17 Mich. L. Rev. 621 (1919); Z. Chafee, Jr., "Freedom 
of Speech in War Time," 32 Harv. L. Rev. 982 (1919). 

Treason : 

Charles Warren, "What Is Giving Aid and Comfort to the 
Enemy?", 27 Yale L. Rev. 331 (1918). 

Post-ofiice : 

" Federal Interference with the Freedom of the Press," Lindsay 
Rogers, 23 Yale L. J. 659 (1914), substantially reprinted as Chapter IV 
of his Postal Power of Congress, Baltimore, John Hopkins Press, 1916; 
R. E. Cushman, " National Police Power under the Postal Clause of 
the Constitution," 4 Minn. L. Rev. 402 (1920); William Hard, "Mr. 
Burleson, Espionagent," 19 New Republic 42 (May 10, 1919), and 
"Mr. Burleson, Section 48iy2 B," 19 New Republic 76 (May 17, 1919); 
" Burleson and the Call," 22 New Republic 157 (January 7, 1920) ; 
"The Call," 1 Review 652 (December 13, 1919). For examples of war 
censorship and legal discussion of Title XII of the Espionage Act, 
Carroll, op. cit., in 17 Mich. L. Rev. 629. 

Particular Cases under the Espionage Act and State War Acts: 

Abrams (Chapter III): 

The principal sources are the Transcript of Record, Supreme Court 
of the United States, October Term, 1919, No. 316, Jacob Abrams 
et al., PlaintifFs-in-Error, v. The United States; the two briefs; and the 
opinions of the court in 40 Sup. Ct. Rep. 17 (1919), also reprinted in 
"The Espionage Act Interpreted," 20 Neio Republic 377 (November 26, 
1919). Transcript and briefs are in the library of the Law School 
of Harvard University. It has not been thought necessary to give ref- 
erences to the Record except for significant passages. Some informa- 
tion about the trial not contained in the Record is taken from current 
issues of the New York Times and the New York Call, or from personal 
conversation and correspondence; the sources of such unofficial data are 
indicated in every instance, and have been carefully checked from the 
Stenographic Minutes of the trial, in the U. S. Attorney's office, 
N. Y., where they were very kindly placed at my disposal. See also 
Palmer Deportations Testimony, 173. 

For criticism of the trial, see the pamphlet. Sentenced to Twenty 
Years Prison, published by the Political Prisoners Defense and Relief 
Committee, New York, 1919; "Our Ferocious Sentences," 107 Nation 
604 (November 2, 1918). 

Comment in support of the majority opinion of the Supreme Court 
will be found in a note, " The Espionage Act and the Limits of Legal 
Toleration," 33 Harv. L. Rev. 442 (January, 1910) ; and in articles, 
"Justice Holmes's Dissent," 1 Review 636 (December 6, 1919); John 
H. Wigmore, " Freedom of Speech and Freedom of Thuggery," 14 
III. L. Rev. 539. The minority opinion is supported by a note, " Free 
Speech in Time of Peace," in 29 Yale L. J. 337 (January, 1920); and 



APPENDICES 381 

14 ///. L. Rev. 601; and articles "The Call to Toleration," 20 New 
Republic 360 (November 26, 1919), "What Is Left of Free Speech," 
Gerard C. Henderson, 21 ISew Republic 50 (December 10, 1919). 

Berger (see under Legislative Exclusion). 

Debs : 

David Karnsner, Dehs, his Authorized Life and Letters from Wood- 
stock Prison to Atlanta, N. Y,, 1919. Reviewed by Harry Salpeter, 
"Martyr or Felon?", 110 Nation 520 (April 17, 1920). Scott Nearing, 
"The Debs Decision," Rand School, N. Y., 1919, contains Debs' ad- 
dresses at Canton and in the court-room. " The Law of the Debs Case 
and Freedom of Speech," 19 Ne^c Republic 13 (May 3, 1919) ; followed 
by correspondence, ibid., 151 (May 31). "The Trial of Eugene Debs," 
Max Eastman, The Liberator (November, 1918), gives another defend- 
ant's impression. 

I. W. W. (see under Radical Activities). 

Nearing : 

Scott Nearing, "The Great Madness: a Victory for the American 
Plutocracy," Rand School, N. Y., 1917. 

O'Hare : 

"The Conviction of Kate Richards O'Hare and North Dakota Poli- 
tics," Natl. Civil Liberties Bureau, N. Y.; "The Kate O'Hare Booklets," 
published by Frank P. O'Hare, St. Louis. 

Syracuse Socialist Case of 1920 (Steene, Hotze, and Preston): 21 
New Republic 302 (February 11, 1920); "Bringing the Constitution 
into Disrepute," ibid. 330 (February 18, 1920). 

Townley : 

C. R. Johnson, "The Conviction of Townley," 20 New Republic 18 
(August 6, 1919); Judson King, "The Prosecution of Mr. Townley," 
109 Nation 143 (Augu.st 2, 1919); "The Trial of Townley and Gilbert," 
1 Review (July 26, 1919). An impartial account of the Non-Partisan 
League is Arthur Ruhl, "The North Dakota Idea," Atlantic Monthly 
(May, 1919). 

C. Radicai- Activities in the United States and Peace-time Restric- 
tions UPON Freedom of Speech (Chajpters IV and V) 

Backgrounds : 

All consideration of governmental activity against radicalism should 
be preceded by an inquiry into the nature and purposes of the various 
radical movements, which must be carefully kept distinct. Bertrand 
Russell, Proposed Roads to Freedom : Socialism, Anarchism and Syndi- 
calism, N. Y., 1919, is a fair-minded survey though opposed to the 
present system. Among books on Russia are E. H. Wilcox, Russia's 
Ruin; Russian^American Relations, ed. Camming and Pettit, See, also, 
under I.W.W., infra. 

On anarchy legislation of the past and similar problems, Ernst 
Freund, The Police Power, §§471-484. F. T. Hill, Famous Battles of 
the Law, narrates the Chicago affair of 1886. Concrete data on the 
handling of radical meetings before the war are furnished by Arthur 
Woods, Policeman and Public, New Haven, 1919; and J. F. Rhodes, 
History of the United States, Vol. VIII, N. Y., 1919. The work of 



382 APPENDICES 

the New York Bomb Squad is told by Tunney and HoUister in 
Throttled, Boston, 1919. 

Blasphemy : 

Austin W, Scott, " The Legality of Atheism," 31 Harv. L. Rev. 289 
(1917). 

Sex topics: 

Theodore Schroeder, Obscene Literature and Constitutional Law, 
N. Y., 1911, and other writings by him; J. C. Ruppenthal "Criminal 
Statutes on Birth (Control," 10 /. Cr. L. & Crim. 48 (1919); and see 
P. V. Byrne, 163 N. Y. Supp. 680, 682. 

Moving-picture Censorship: 

Amy Woods, " Boston and the ' Movie ' Censorship," 44 Survey 106 
(April 17, 1920). 

Strikes and Labor Troubles: 

The ability of freedom of speech to withstand such strains has not 
been sufficiently studied. William Hard has written a series of articles 
on Passaic: "America in Passaic," 22 New Republic 182 (April 7, 
1920); "Learn from Passaic," 22 ibid. 213 (April 14); "They Must 
Have Espionage," 22 ibid. 248 (April 21). On the Steel Strike, see 
S. Adele Shaw, "The Makmgs for Revolution," 20 ibid. 52 (August 
13, 1919) ; W. Z. Foster, The Great Steel Strike; The Interchurch Re- 
port on the Steel Strike of 1919. 

Proposed Federal Sedition Bills and National Conditions : 

Four official reports have been published, which are valuable not only 
in relation to this topic, but also for information about deportations, 
state legislation, radical activities, and the work of the Department of 
Justice. These are: (1) Bolshevik Propaganda, Hearings before a Svh- 
committee of the Committee on the Judiciary, United States Senate, 
Sixty-fifth Congress, Third Session and thereafter, pursuant to Senate 
Resolutions 439 and 469 Washington, 1919. This is the report of the 
Overman Committee, and contains the testimony of Raymond Robins 
and others on Russian internal affairs. Cited as Bolshevik Propaganda 
in this book. 

(2) Investigation Activities of the Department of Justice, Letter from 
the Attorney General transmitting in Response to a Senate Resolution 
of October 17, 1919, a Report on the Activities of the Bureau of In- 
vestigation of the Department of Justice against Persons advising 
Anarchy, Sedition, and the Forcible Overthrow of the Government, 
Sen. Doc. No. 153, 66th Cong., 1st Sess., Wash., 1919. Cited as Investi- 
gation Activities in this book. 

(3) Rule Making in Order the Consideration of S. 3317, Hearings 
before the Committee on Rules, House of Representatives, 66th Cong., 
2d Sess., on H. Res. 438, Wash., 1920. Cited as House Rules Hearings 
in this book. 

(4) Sedition, Hearing before the Committee on the Judiciary, House 
of Representatives, 66th Cong., 2d Sess., on S. 3317, H. R. 1*0650 and 
12041, Serial 16, February 4 and 6, 1920. Wash., 1920. This contains 
official publications of the Communist parties, etc. Cited as House 
Judiciary Hearings in this book. 

See also copies of the various bills and the proposed amendments; 



APPENDICES 383 

also House Judiciary Report submitting Graham Bill, H. R. Report 
No. 642, 66th Cong., 2d Sess.; also Reports listed under Deportations. 
Among articles in periodicals on these bills and the "red hysteria," 
are: Frank I. Cobb, "The Press and Public Opinion," 21 New Republic 
144 (December 31, 1919); Z. Chafee, Jr., "Legislation Against 
Anarchy" (Overman Bill), 19 ibid. 379 (July 23, 1919); "A New 
Alien and Sedition Law," 20 ibid. 366 (November 26, 1919); Swin- 
burne Hale, " The ' Force and Violence ' Joker," 21 ibid. 231 (January 
21, 1920); "The Red Hysteria" (Harvard Liberal Club Dinner), 21 
ibid. 249 (January 28); William Hard, "Perhaps the Turn of the 
Tide" (House Rules hearings on Graham Bill), 21 ibid. 313 (February 
11); "What Is Attorney General Palmer Doing?" (circular letter by 
him), 110 Nation 190 (February 14); "The Issue of Free Speech," 1 
Review 634 (December 6, 1919); "Mock-Hysteria," 2 Review 43 (Janu- 
ary 17, 1920); "What Shall We Do with the Direct Actionist?", 89 
Cent. L. J. 313 (1919); Walter Lippman and Z. Chafee, Jr., "Free 
Speech and Free Press as Factors in International Aflfairs," League of 
Free Nations Bulletin, March, 1920. 

State Sedition and Syndicalism Laws: 

"Criminal Syndicalism," 20 Colum. L. Rev. 232 (1920); letter in 
110 Nation 202 (February 14, 1920). California, Perry L. Edwards, 
" Criminal Syndicalism — Back-firing Against Industrial Unrest by the 
Legislature of California," 89 Cent. L. J. 336 (1919); "The Conviction 
of Anita Whitney," Clare Shipman, 110 Nation 365 (March 20, 1920). 
Connecticut, "'The Most Brainiest Man,'" 110 ibid. 510 (April 17). 
Massachusetts, Z. Chafee, Jr., " Warns of Anti-Anarchy Bill," Boston 
Sunday Advertiser, April 13, 1919. New Jersey, H. E. Cory, "The In- 
tellectuals and the Wage Workers," N. Y., 1919 (p. 208 on Boyd case). 
New York, Swinburne Hale, " Criminal Anarchy," 21 New Republic 
270 (January 28, 1920); [McAdoo decision against Gitlow and Larkin], 
House Judiciary Hearings, p. 155; A. Giovannitti, "Commercialism on 
Trial," Liberator, March, 1920 (Gitlow trial). Oregon, "American by 
Decree" (foreign language press), 22 New Republic 262 (April 28, 
1920). 

See U. S. oflBcial reports, supra, and Appendix- V, infra. 

Industrial Workers of the World: 

There are two studies by scholars. Paul Frederick Brissenden: The 
I.W.W.: A Study of American Syndicalism. Colum. Univ. Studies 
in History, etc., vol. 83, 2d ed., N. Y., 1920. Carleton H. Parker: "The 
I.W.W.," Atlantic Monthly, 651 (November, 1917), reprinted in his 
The Casual Laborer and Other Essays, N. Y., 1920. 

For the Chicago trial, see U. S., v. W. D. Haywood et al. Bull. 
Dept. Just., No. 175; Evidence and Cross-Examination of W. D. Hay- 
wood [in same]; Evidence and Cross-Examination of J. T. (Red) 
Doran [in same]; Indictment [in same], I.W\W. Pub. Bureau, 
Chicago.; "The Truth about the I.W.W.", Natl. Civil Liberties Bureau, 
N. Y.; "The Persecution of the Radical Labor Movement in the 
United States." N. Y. Defense Committee of the I.W.W., N. Y. 

The Sacramento trial is discussed in "01' Rags and Bottles," 108 
Nation 114 (January 25, 1919) ; American Labor Year-Book, 1919-20, 
100 and 107, has accounts of Chicago and Sacramento trials. 

For the Washington situation, see [Washington Injunction Against 
Membership in the I.W.W.], 109 Nation 843 (January 3, 1920); 



384 APPENDICES 

Jerrold Owen: "Centralia," American Legion Weekly, December 12, 
1919; Anna Louise Strong, "Centralia: An Unfinished Story," 110 
Nation 508 (April 17, 1920); E. M., "Centralia," 22 New Republic 217 
(April 14, 1920). Ole Hanson, Americanism vs. Bolshevism. 

Deportation of Aliens (Chapter V): 

The best review of the procedure is by Assistant Secretary of 
Labor Louis F. Post, " Administrative Decisions in Connection with 
Immigration," 10 Am. Pol. Sci. Rev. 251 (1916). Recent legal arti- 
cles: Howard L. Bevis, "The Deportation of Aliens," 62 U. of Pa. 
L. Rev. 97 (1920); "Deportation of Seditious Aliens," 23 Law Notes 
(N. Y.) 64 (1919); "Deportation of Aliens who Advocate the Over- 
throw of Government by Force," 89 Cent. L. J. 369 (1919). John Lord 
O'Brian, "The Menace of Administrative Law," address to Maryland 
Bar Association; June, 1920. 

Original sources: The administrative hearmgs are largely buried in 
the files of the immigration officials. A few cases are extracted in 
Charles Recht, " American Deportation and Exclusion Laws," League 
for Democratic Control, Boston, 1919, and " The Anarchist Deporta- 
tions," 21 New Republic, 96 (December 24, 1919). The whole proce- 
dure in the Communist raids is exhaustively shown by the record in 
Katzeff V. Skeffington (Colyer case) in the Lnited States District Court 
in Boston. The Federal Reporter contains several recent decisions on 
the deportation of radicals. The decision of Secretary of Labor Wilson 
on the Communist Party is in House Judiciary Hearings (p. 17), whfch 
also gives the platform, manifesto, etc., of this and the Communist 
Labor Party. Much of the same material with a history of the creation 
of the two parties is also accessible in American Labor Year-Book, 
1919-20. Part of the decision of Assistant Secretary Post on the raid 
cases is in " On Behalf of Louis F. Post," 22 New Republic 264 (April 
28, 1920). The most valuable document in the raids is Judge Anderson's 
decision in the Colyer case, in the Federal Reporter, 265 Fed. 17. 

The history of left-wing Socialism is also narrated by an impartial 
observer, Gordon S. Watkins, " The Present Status of Socialism in the 
United States," 124 Atlantic 821 (December, 1919); and in H. W. 
Laidler, " Socialism in Thought and Action." 

Congressional reports of especial value, 66th Congress, 2d Session, 1920: 
(1) Three pamphlets of Hearings before a Subcommittee of the House 
Committee on Immigration and Naturalization, " Communist and 
Anarchist Deportation Cases," " I.W.W. Deportation Cases," " Com- 
munist Labor Party Deportation Cases," all cited herein as House 
Immigration Hearings. These contain many administrative decisions, 
but not the complete records. (2) " Investigation of Administration 
of Louis F. Post, Assistant Secretary of Labor, in the Matter of 
Deportation of Aliens, Hearings before the Committee on Rules, 
etc., on H. Res. 522," 2 parts; cited herein as Post Deportations 
Testim07iy. (3) "Attorney General A. Mitchell Palmer on charges 
made against the Department of Justice by Louis F. Post and others. 
Hearings before the Committee on Rules, etc.," Part I; cited herein 
as Palmer Deportations Testimony. 

Much important testimony from the Colyer case, including the official 
instructions, is in the pamphlet, "To the American People. Report 
upon the Illegal Practices of the United States Department of Justice," 
by 12 lavi^^ers. National Popular Government League, Washington, May, 
1920; cited herein as Ulegal Practices. 



APPENDICES 385 

Popular articles on the "Buford" and the January raids are: "The 
Deportation," 1 Review 695 (December 27, 1919); "The Raid on the 
Reds," 2 Review 22 (January 10, 1920) ; " Deporting a Political Party," 
21 New Republic 186 (January 14, 1920). Ernst Freund, "Burn- 
ing Heretics," 21 ibid. 266 (January 28, 1920); "A Federal Judge 
Speaks Up" (Bourquin, J., in Re Jackson), 22 ibid. 135 (March 
31); "Deportations and the Law," 110 Nation 131 (January 
31); F. R. Barkley, "Jailing Radicals in Detroit," 110 ibid. 136; F. C 
Howe, "Lynch Law and the Immigrant Alien," 110 ibid. 194 (February 
14); "Another Man Without a Country," 110 ibid. 289 (March 6); 
Lincoln Colcord, " Martens and Our Foreign Policy " (correspondence 
of Secretary Wilson and John E. MilhoUand), 110 ibid. 324 (March 
13) ; Winthrop D. Lane, " The Buford Widows," 43 Survey 391 (January 
10) ; " Aliens and Sedition in the New Year," 43 ibid. 422 (January 13) ; 
Sidney Howard, "The Colyer Trial Opens," 44 Survey 105 (April 17). 
See, also, some of the articles on the red hysteria, etc. 

Accounts of the New England raids from the point of view of 
the aliens are, " The Soviet of Deer Island, Boston Harbor, January- 
February, 1920, by One of the Members," Boston Branch of Am. Civil 
Liberties Union; "Deported via Deer Island," MSS. report prepared 
for the Bureau. 

Searches and Seizures (Chapters V and VI) : 

"The Case of the Rand School," published by the School, N. Y,, 
1919; "The Truth about the Lusk Committee," Nation Press, N. Y., 
1920; "Whose Home Will Be Safe?", 19 Nexo Republic 303 (July 9, 
1919) ; Anna L. Strong, " A Newspaper Confiscated — and Returned," 
109 Nation 738 (December 13, 1919). 



D. Power of a Legislature to Exclude or Expel for Opinions 
(Chapter VI) 

For the English law, T. Erskine May, Parliamentary Practice, 12th 
ed., London, 1917; same, Constitutional History of England, vol. I, for 
Wilkes, and also G. O. Trevelyan, Early History of Charles James Fox, 
and Macaulay's second Essay on Chatham. Justin McCarthy, History of 
Our Own Times, vol. Ill, for Bradlaugh. 

For Congress, Asher Hinds, Precedents of the House of Represen- 
tatives of the United States, Washington, 1907. This contains many 
Senate cases. See, also, Webb & Pierce, Compilation of Senate Election 
Cases, 1789-1913, Washington, 1913. Other Congressional compilations 
may be useful. Massachusetts cases are collected by Gushing, Loring, 
and Russell; New York, by Armstrong. 

Berger : 

Victor L. Berger, Hearings before the Special Committee appointed 
under the Authority of House Resolution No. 6 concerning the Right 
of Victor L. Berger to be Sworn in as a Member of the Sixty-sixth 
Congress, 2 vols.. Wash., 1919. (These contain records of the prosecu- 
tion and Milwaukee Leader case.) Cited herein as Berger Hearings. 

Ho. Cal. No. 91, 66th Cong., 1st Sess., Report No. 413, Case of 
Victor L. Berger of Wisconsin. Cited herein as Berger Report. 

"Victor L. Berger," Socialist Review, (February, 1920); "The Berger 
Victory," 109 Nation 820 (December 27, 1919); for account of the 



386 APPENDICES 

trial from the side of the defense, Americcm Labor Y ear-Book, 1919-20, 
97-100. 

New York Socialists: 

The record of the investigation was printed by the Assembly. Briefs 
include, Brief of Special Committee appointed by the Association of the 
Bar of the City of New York (January 20, 1920) ; Outline of the Evi- 
dence taken before the Judiciary Committee to and including February 
6, 1920, with a discussion of some conclusions to be drawn therefrom 
[against Socialists and signed by Attorney-General and associate 
coimsel]; Brief for the Socialist Assemblymen, March 15, 1920; Brief 
for the Judiciary Committee, March 24, 1920. 

Articles in periodicals (all in 1920): "The Issues in the Fight at 
Albany," 2 Review 121 (February 7); " Hillquit on the Socialist Pro- 
gramme," 2 Review 193 (February 28); "Governor Smith's Oppor- 
tunity," 2 Review 421 (April 24) ; " Speaker Sweet Does His Bit," 22 
New Republic 210 (January 21); "The Mob in High Places," 22 New 
Republic 279 (February 4) ; " Up to the Voters," 22 New Republic 
200 (April 14) [Lusk Bills]; 22 New Republic 171 (April 7); "Minority 
Rights at Albany," 110 Nation 288 (March 6); Lewis S. Gannett, "The 
Socialists' Trial at Albany: A Summary," 110 Nation 361 (March 20); 
Loula D. Lasker, " Back in the Districts : What New York Assembly- 
men's Constituents Are Thinking," 53 Survey 767 (March 20); Robert 
Minor, "Dissolving the Duma at Albany," Liberator (March 20). 

E, Schools 

Henry R. Linville, John L. Tildsley, and Z. Chafee, Jr., " The Schools 
and the Issue of Freedom," in leaflets, " The Public and the Schools," 
published by Public School Education Assn., N. Y., May 3, 17, 24, 1919. 
Various pamphlets have been issued on both sides of the controversies 
in New York and Washington, and several articles printed in the 
Nation. 



APPENDIX II 

INDEX OF REPORTED CASES UNDER THE ESPIONAGE 
ACTS OF 1917 AND 1918 

This index is meant to include all Espionage Act cases involving 
freedom of speech which are contained in the following reports, ab- 
breviated as shown: 

Bulletins of the Department of Justice on the Interpretation of War 
Statutes (B); 

Federal Reporter (F), containing cases in the Circuit Court of Ap- 
peals, and occasionally in the District Courts; 

United States Reports (U. S.), containing Supreme Court decisions; 

One case is officially reported only in Report of the Attorney Gen- 
eral for 1918 (A), which gives facts of many more. 

Some recent Supreme Court cases are in the Supreme Court Reporter 
(Sup.). 

A few cases are from Nelles, Espionage Act Cases (N). 

So far as practicable I have indexed not only the defendant who 
gives his name to the case but every defendant. This seemed unde- 
sirable in the cases of the 93 I.W.W.'s in the Haywood case and the 
27 Socialists in the Baltzer case. Consequently, while there are 184 
persons indexed below, 118 more should be added to give the total 
number of persons whose prosecutions are reported, making 302 in all. 
Besides these many Espionage Act cases have never been reported. 
Notes of these are in War-time Prosecutions and Mob Violence, which 
contains the facts of many others. The total number of persons con- 
victed is reported as 877, with 285 cases still pending on June 30, 1919. 
The Attorney General's Reports for 1918 and 1919 show that there 
were 988 cases commenced in 1917-18, and 968 in 1918-19. Out of 
these 1,956 cases only a small fraction are reported anywhere. 

In each instance I have given the defendant's name, the state where 
he was prosecuted (omitting United States Districts within a state), a 
reference to the report, the result of the case, and the sentence. 

Abbreviations are : 
C, conviction. 
Acq., acquittal. 
Acq. d., acquittal directed. 
Ind., indictment. 

AiF., affirmed by Circuit Court of Appeals or Supreme Court. 
Rev., reversed by Circuit Court of Appeals or Supreme Court. 

An asterisk shows that the sentence has been shortened by the Presi- 
dent, and the length of the commuted sentence or date of its expiration 
is added. It is possible that some commutations have been omitted. 
Information as to convictions, sentences, pardons, etc., if not contained 
in the reports, has been obtained from War-time Prosecutions; Neto 
York Times, May 9, 1919; and from the Attorney General's Report for 
1919. 

387 



388 



APPENDICES 



a 

O u 





St3 2 
is o 






5k 




CO 


. o 










^ c 55 2 


o3 


>> ,• O O • 




^ fc est- j2St3 




^Sj- &o»o'^ 




^<f^<^< 


' ?^ ,« o 

rH ^ »0 (M 


o 






dddo^Sd 


d oooo 


dd£d<3 


00 




























H 


£Q 









0.0 

o 

O (N 






CO 



dd d ddd d d 






« ^ 






fo 



CO CO 



fe 



CO 



m 



fe 



"5 O -^* 

. • O wOO 
00 "" 



« » 5C0 pg ^'>'_^'°|5§ 



^ Oi <^(^(^ , 



■<* CO 






oO 
CO 



'ffi 5 4 



to 

-M r ^ C 

c8 "O r 






ra (U m — 4J >-^*j 



.en. n^oj. .. U.. 



';2iO' 



cS CS 



dJ 



^>J 



Q^ 






±:&:o^ 



o<i' 






t-5 <U 

-i go-" 



pi *^ H ^^x 

mP5p:5«PQWP3P3pqP5P5P3fQOO!JOOUCJ 



APPENDICES 389 



< 






, .wj frtf^ to, W2 , ?'« t*^ 



... .^o ...B .. ."-' .S. 



El, .CQ ►-> 

^ CO -. «o o 

1^ L^iS ^ » 



« S^ I «« ^ g S« ffl 

ooio5^-oo'>5^ S^co^c^o-i ^ Sg ^co o6 

Or' o r ■ >0 , • C:. 'IMnS-' r,''-<r"'S"^rT'<'>OD" QDCD CO.- Or' 

ooco-* ui'^'^ . ^..<M.^..g. ...cS...« j;:; 



^^ 


H^O 


#^ 


r'^ 


c^S 


^=.-> 


« s 


a=n-S 


-= S S) 


*^ !3 


c8^:S 


S c -o 


3 CS 


(U U (U 


V tJ o 


oQ 


QOQ 


QQP 



CO 

<«H (M 



'^"<! : : : -aij ■ ' • * : . :<5 . . .^ 



< r"rn<nU3 OiNtn'o 









QQHSHHiyfeS;ii;iifofo oooo 66oo 



390 



APPENDICES 



W "3 tS 






o 






O CO >>5t3 « c 



-^< 



I CO 









>> >. 



<1 . 









dd'<c5<5cJ!j d »Sddddc)d<!ddd 






I > on 

i«-3 



'O O TS 



o> 



tfcj 

<3 



; CO ;2 >o < 
id§dd 



s 
o 

e 

O h 

o 
. o 

ca 

.2 






pq n 



P>H 



n 



•.ji 5£ o t- 




OJ 




ir> g »o o 




«5 




t- *" »H 05 




CO 




^' plH* p^ EIh' 


CO 


fe 


« 
r- 




t~ 




I— 1 


(M «o 00 ^ 




o 




CO »o "* tc 


fQ 




eq 


<M(M (N IN 


(N 








tn 


rt O ^ 


ct 


lU 


O 

C 



CO 



Q 






t^ 






S2 



CO affi 

C3 o» 



l-J 00 CO O fo <c fci <M CO 00 Mh flH OD CO fe CO CO 
r-iaO'-t i-l i-l»Ot- IQ i-< 1-frH 

00 t- 00 CO eo o> CO 

^ WfQfQSm^Mfqm^§pQCQ^mw§w«« 






; ^ 

• ; ! ! I ! o 

• ! I ! ; : (M 

OJ 

c 

'•'.','.'.'. '^ 

; : : : : :q 

" : I '.^^^ 

bE3= S s- " >> 
3 CO ctf cB C8 c8 £6 






^gd 



1^ 



e.g. 

3 



p OJ s <u g.spa 

£ i3 s c «:i « S 






is CJ cS 

4) aj (U --i .« .^ •« O .0 ^? 3 3 



g go ^'^^ .4, 



APPENDICES 



391 





{« 


ta^* 




OJ M *« t> « 




> 






* 


to Oi 


<! 


ol^ 






<*i 


^4 








h ^ 


CO vi 


r« "^ _ 




tH W CO .CO 




.T? 






CO 


>>^ 


>H ^ 


W l« fQ 




t»j t, J- CO >- 


»2 S 


CO O 






CO s- 'O 


"?5 


20 y 
Rev. 

20 y 


2 yi 

20 y 

id. ba 


<5 


=^ .1 (N •< lO (M 






?»3 




d uOdd 


oo5 


udddddd 


"<dd<?d^5 


<3 


dddM 


s 


o 












CD O 






s 


•«* 












05 T}( 







CO CO w 

• !; 'I t" 

<! »0 .* U5 

dddd 



CO 






CO 



CIh" 00 &H* Id 



^^ 

u 

V 

• M < 

« »< 

®> rij r/ < 
cq c^ C/3 1 

CO CO O I 



ElH 



(^^^ 



F— ( i-H 

00 CD 



00 



fe^ 






IN (N 00 
00 
00 



E^fe 



00 
CO 
iO 

CO 



<^ IN 2 .« '^ 
»o >o £: J? • 

(NoqCOOpQ 



CO la 

<N lo 



OS t- wTco ■* Tji t-^oTjii 



PhO o >0 hIh 00 (M 00 



(mCm(NIM(M (N(M(mW 



.2 C . 



eOpt|tlHGO'-H>OT*<OOOQD<N(M ^-j^k.;-...! 

CD t-i-H.-HF-i'-ii-iiMt^i-li-i ^•^.^.-H biibf 

« ^ S W M M «' « «■ pa «■ « pq N M P5 « S pq <j P5 



to 2^ fl'S-M 
£ 5 §^ S 
,^ *< 3 ca (u 




• pa 



3-iJSs;^ss^gsss^^^^^ 



'-t 1h #n w hs. "^ *^ 

« lu ij ^ r> ^ «s 

r' 3 «8 rt oi oj J3 



392 



APPENDICES 



Tans 






05 


d <L> 






1— 1 


to M 
t« CO 


«tt 




aD~ > 


s'a 


^ 




.0 tf 


to CO 






* . 


^^ 


d 




Aff. 
. Rev. 
Aff. ( 

1. Rev, 

$500. 


s. 

case 

case 





09- 




Aff. 

1V2 yr 

istrial; 
istrial; 
cq. 




. 15 yrs. 
. 20 yrs, 
, 3 yrs. 
id. bad 
. 20 yrs 
. 2 yrs.. 


1* 


dodooo(jii;od 


1. 








13 








3 




»o 




S §§ 




CO 

00 





PQ 



CQ 



cQpa 



(O to 



CD r-r. Ft. 

CD ►^H l^^l 

°° pH pH 

QD 2 1= « 

g CO (M (N 
c» ^ ^ ^ 

._ • o o 

fc. flH CO CO 

•^ I— I r-H 

W CO 



P5 



eo rt 

tofofe" 
to 

rX >« ^ 
W IN (N 



fqoo 



Ph to 

CD to 



^CD 

X »o CO 
o> c<i ■<*' 



CO 

^52 



fe CO 



to »- 



CO 



^, '^ ^ >. 

ddddij>S5tjijddc5dddd 






S«5 



. Oi o 

CsL, 10 >c 

^ IM IN 



to <N (N CQ 



t- CO 

t- CO 

,eo (N 






<M GO >0 , 



to 



CO 



-01 



i-Hp El, rt piH 

I-H rl 

ifqilfQ^M^ mW 



'"'qoco'* 



eo CD 

(N (N 



i-( CC "^ »o 

fc fo &; g fo fe g fe ti fe &<' 

(M CO O? i- t- CO O rH 1-H 

»0t0t0-V»0»0pA«'2^C0 



>^>^^Hi>^.£ oq II . >i >^ .c {h _2- .^ 









d^>H^' 



en 



Of^^^ 



.J 









h CO 



"X "? "S -fn ^ ^ cs 



P^o- 



.2i .Sy 'o c S .t; .S - p. — 
PHPHl^PHaHPHp4p:;p:;pHPHpHp:;coc/3Cfl 



^"jJ.dcW 

J<! 5- (U cS 0) 

(U O 3 3 3 
4= X .G J= -G 



.03 



^•E^ 



1 -jj ^ cC 

CO cc w cfl cfi cc cc cc 



Ut.ICJt.IU 



<i4 



M"2 



C c C N , 
r^ QJ •-' (-! 



l/Ji/JMCCCO 



APPENDICES 



393 



Itf 



o 



JO 



fe 






^ § - 



^ >.' 



CO CO ■< c^CO (N <N 



tf 



•<-^ Oi ,3 

4j * 
CO 



^.S 






*^ « n »0 O TS ^~ <M 



{ft 



»H . .rrj 

>o <i ■< "! 



i^ tf 



o 

lO 

6©- 



Us 



r en 

CO *-| 

O 
»0 (N 



^udhS dtJo^ddo ddSod d<;d dcJd;^; dd dd 



CO 
N O ^ , 

<-H Tfl IM , 

.J 

«o t- to 

i-t t, o 



pq 






IJH <N 



pq « W S CQ 



I *^^ z£ '^•' 



M 



00 "^ ^ 50 

••■ . 00 

o o >o •-< 

OS lO (M >p 



«■ «■ fQ tt «■ S W" fQ PQ « 



PC4 
MS ^ 

•>PQ 



t- (N to fe g^ft. Oh JO ;=; p^ 

00 W3 (T, CO ■* 



(M CO —OJ 
1— I »o "-I "-< 
l-H r-( 00 l-l 






Q^^- g 
^•^^1 



£ ^* ^ «' 



EhOj5U«^:2;c«;2; 



inJ 















•fe 



mx^-^ 



X) 3 



>^ --2 • 

'-' S ^ Oh 
■^ fen— 



en « 4> lU <u ^ EjCt- 
^ ^ C 3 O C t- 
3 >., cj c8 3 * >?^ . >-' 

«2 cc E-t H H > K* > 



bO 






^ CO ec cs 



E^K 



i-" &c . iJ d 

„-..... tlDl^QJ 4;^'-'"^ 



OH 

C CS 



|1h i; 



d 



5^ c 



.!£ o o 



i^^^^^^ 



394 



APPENDICES 



^ 
;:?; 



<6< 



.4 

I? 



;3 

a aJ fl S c 
_o.2 0.2 o 



S.J; P 



§"^.t^ 



-Si 



•5 a 






5 S 









s s 



p^ 



CO 5 oo 

»H r-( "-I OS 



^ :S <N 



pm 



W .5 'O CO 



s >^ 







H a 
s 



p^ 



^•s 



«^cg^ 



S 



a 



> 


3 


g 


6 






,Q 


§ 


1 







m 


PM 


• 






0) 


> 


■fl 


1^ 




.2 
'S 
o 


111 


6 
O 


OD 




.2 


HI 


CQ 


:j 


«a 




PM 



KjD 



APPENDIX III 
TEXT AND CONSTRUCTION OF THE ESPIONAGE ACT OF 1918 

Title I, §3, as amended, reads as follows (Act of May 16, 1918, 
c. 75, §1, U. S. Comp. Stat., 1918, § 10212 c). The italicized words 
punish language for remote tendencies: Cf. the Sedition Act of 1798. 

" Whoever, when the United States is at war, shall willfully make or 
convey false reports or false statements with intent to interfere with the 
operation or success of the military or naval forces of the United States, 
or to promote the success of its enemies, or shall willfully make or 
convey false reports or false statements, or say or do anything except 
by way of bona fide and not disloyal advice to an investor or investors, 
with intent to obstruct the sale by the United States of bonds or other 
securities of the United States or the making of loans by or to the 
United States, and whoever, when the United States is at war, shall 
willfully cause, or attempt to cause, or incite or attempt to incite, in- 
subordination, disloyalty, mutiny, or refusal of duty, in the military 
or naval forces of the United States, or shall willfully obstruct or 
attempt to obstruct the recruiting or enlistment service of the United 
States, and whoever, when the United States is at war, shall willfully 
utter, print, write, or publish any disloyal, profane, scurrilous, or abvr- 
sive language about the form of government of the United States, or 
the Constitution of the United States, or the military or naval forces of 
the United States, or the flag of the United States, or the uniform of 
the Army or Navy of the United States, or any language intended to 
bring the form of government of the United States, or the Constitution 
of the United States, or the military or naval forces of the United 
States, or the flag of the United States, or the uniform of the Army 
or Navy of the United States into contempt, scorn, contumely, or dis- 
repute, or shall willfully utter, print, write, or publish any language 
intended to incite, provoke, or encourage resistance to the United States, 
or to promote the cause of its enemies, or shall willfully display the 
flag of any foreign enemy, or shall willfully by utterance, writing, print- 
ing, publication, or language spoken, urge, incite, or advocate any cur- 
tailment of production in this country of any thing or things, product 
or products, necessary or essential to the prosecution of the war in 
which the United States may be engaged, with intent by such curtail- 
ment to cripple or hinder the United States in the prosecution of the 
war, and whoever shall willfully advocate, teach, defend, or suggest the 
doing of any of the acts or things in this section enumerated, and who- 
ever shall by word or act support or favor the cause of any country 
with which the United States is at war or by word or act oppose the 
cause of the United States therein, shall be punished by a fine of not 
more than $10,000 or imprisonment for not more than twenty years, 
or both: Provided, That any employee or ofl&cial of the United States 
Government who commits any disloyal act or utters any unpatriotic or 
disloyal language, or who, in an abusive and violent manner criticizes 
the Army or Navy or the flag of the United States shall be at once 
dismissed from the service. Any such employee shall be dismissed by 
the head of the department in which the employee may be engaged, and 

396 



396 APPENDICES 

any such oflScial shall be dismissed by the authority having power to 
appoint a successor to the dismissed official." 

The conspiracy, harboring, and search-warrant sections of the Act of 
1917 apply to the section just quoted; and also the mail provisions, 
which were amended on May 16, 1918, by the addition of a section 
authorizing the Postmaster General, " upon evidence satisfactory to him 
that any person or concern is using the mails " in violation of the Es- 
pionage Act, to have all mail of every kind addressed to that person 
or concern returned to the sender. (Act, May 16, 1918, c. 75, §2; 
U. S. Comp. Stat., 1918, § 10401 d. See Carroll, in 17 Mich. L. Rev. 689.) 
Cases involving the new crimes created by the Espionage Act of 1918, 
reported in the Bulletins of the Department of Justice on the Interpre- 
tation of War Statutes, the Federal Reporter, and the U. S. Reports, 
through 1919, are as follows: 

(1) Obstruction of war loans. United States v. Bold, Bull. 183 (Ore., 
Wolverton, J.); United States v. Brackett, Bull. 170 (E. D. Mo., 
Munger, J.); Kumpula v. United States, 261 Fed. 49 (C. C A. 9th, 
1919, per Hunt, J.); Hall v. United States, 256 Fed. 748, Bull. 189 
(C. C. A. 4th, 1919, per Pritchard, J.). 

(2) Disloyal, etc. language about form of government of United 
States. Abrams v. United States, 40 Sup. Ct. Rep. 17 (1919) (Clarke, 
J.; Holmes, J., dissenting.) 

(3) Language intended to defame form of government. Abrams v. 
United States, supra. 

(4) Disloyal, etc. language about military or naval forces. United 
States V. Buessel, Bull. 131 (Conn., 1918, Howe, J.); United States v. 
Curran, Bull. 140 (S. D. N. Y., 1918, L. Hand, J.); United States v. 
Martin, Bull. 157 (E. D. Tenn., 1918, Sanford, J.; criticism of Presi- 
dent's military policy is within this clause since he is commander-in- 
chief of> army and navj^) ; United States v. Equi, Bull. 172 (Ore., 1918, 
Bean, J.) ; Partan v. United States, 261 Fed. 515 (C. C. A. 9th, 1919, 
per Hunt, J.). 

(5) Language intended to defame the military or naval forces. 
United States v. Equi, supra; United States v. Vevig, Bull. 162 (Alaska, j> 
1918, Bunnell, J.) ; Partan v. United States, supra. 

(6) Disloyal, etc. language about flag. United States v. Buessel, 
supra. 

(7) Language intended to defame the flag. United States v. Equi, 
supra. 

(8) Language intended to incite, etc. resistance to United States or 
promote cause of enemies. United States v. Zademack, Bull. 143 (N. D. 
Oh., 1918, Westenhaver, J.); United States v. Debs, Bull. 155 (N. D. 
Oh., 1918, Westenhaver, J.); United States v. Martin, supra; United 
States V. Weist, Bull. 169 (E. D. Mo., 1918, Munger, J.); United States 
V. Equi, supra; United States v. Carlson, Bull. 185 (W. D. Wash., 1918, 
Neterer, J.); United States v. Albers, Bull. 191 (Ore., 1919, Wolverton, 
J.); United States v. Dodge, Bull. 202 (W. D. N. Y., 1919, Hazel, J.); 
258 Fed. 300 (C. C. A. 2d, 1919, Rogers, J.); certiorari denied, 250 
U. S. 660, 40 Sup. Ct. Rep. 10 (1919); Abrams v. United States, supra; 
Kumpula v. United States, supra. 

(9) Language urging curtailment of production of war materials. 
United States v. Carlson, supra; Abrams v. United States, supra. 

(10) Favor cause of enemies or oppose that of United States. 
United States v. Buessel, supra; United States v. Zademack, supra; 
United States v. Schoberg, Bull. 149 (E. D. Ky., 1918, Cochran, J.); 



APPENDICES 397 

United States v. Bunyard, Bull. 168 (E. D. Mo., 1918, Hunger, 
J.) ; United States v. Weist, supra; United States v. Bold, supra; United 
States V. Albers, sitjrra; United States v. Dodge, supra; Schulze v. 
United States, 259 Fed. 189 (C. C. A. 9th, 1919, per Gilbert, J.); 
United States v. Brackett, supra; Kumpula v. United States, supra. 

See also recent cases in Appendix II: Ault, Listman, Lockhart, Rust, 
Seattle etc. Co., Strong, Mamaux, Wimmer. 



APPENDIX IV 

NORMAL LAW OF FOUR JURISDICTIONS AGAINST ACTUAL 
OR THREATENED VIOLENCE 

(See page 165) 

Massachusetts: Treason, R. L. (1902) c. 206; murder or attempt to 
murder, c. 207; destruction of property by explosives, or attempt 
thereto, c. 208 §§85, 86; indirect participation in a crime, c. 215, §3; 
attempts to commit any crime, c. 215 §6; solicitation of another to 
commit a crime is punishable under this section, Commonwealth v. 
Peaslee, 177 Mass. 267, and also at common law. Commonwealth v. 
Flagg, 135 Mass. 645, quoted in the text. 

New York: Treason, Penal Law (1909), §§2380-2383; murder, 
§§ 1044 ff.; damage to building by explosive, § 1420; manufacture, stor- 
ing, or shipping of explosives, § 1894; attempt to injure building with- 
out damage, § 1895; indirect participation or attempt to commit any 
crime, §§2, 260-262; solicitation of another to commit a crime is prob- 
ably punishable under this section. People v. Strauss, 100 Misc. 661, 
and also at common law; any act seriously disturbing the person or 
property of another, or seriously disturbing the public peace, §43; this 
includes advocacy of revolution and assassination. People v. Most, 171 
N. Y. 423. The N. Y. anarchy act is discussed in the body of the book. 

Washington: Treason, Remington's Code (1915), §§2317-2319; mur- 
der, §§2392ff.; damage by explosives, or placing them, §§2652, 2653; 
unlawful making, storing, or shipping explosives, §§2403, 2504, 2506; 
indirect participation in any crime, §2260; attempts toward any crime, 
§2264; solicitation of another is punishaljle under this section, State 
V. George, 79 Wash. 262, and also at common law. The Wash, syndi- 
calism and sedition acts are discussed in the body of the book. 

District of Columbia: Treason, punishable under general Federal 
law; murder. Code, §798; placing explosives near buildings or dis- 
charging them, §§ 825 a^ 885; indirect participation in crime, §908; at- 
tempts, § 906 ; solicitation is probably a common law o£Fense punishable 
under §910. 



APPENDIX V 



STATE WAR AND PEACE STATUTES AFFECTING 
FREEDOM OF SPEECH 

(Note: As some of the statutes have varying penalties, in order to 
avoid confusion only the punishment for the most serious offense is 
mentioned, which will indicate the relative severity of these laws. Fines 
may operate as a term of imprisonment if the defendant is obliged to 
work them out when too poor to pay. An asterisk shows that this par- 
ticular statute has been discussed in a reference listed in the Bib- 
liography. The cases listed are only the appellate court decisions under 
the statutes; many prosecutions never reach such a court. Each decision 
given affirms a conviction by the trial court unless otherwise described. 
" Reversed " means that a conviction was reversed on appeal. The list 
ends with the year 1919.) 

Part I 
Statutes against Opposition to War. (See p. 110 of text.) 

Alaska Laws, 1917, c. 60 (utter any seditious matter or 

tending to excite discontent, etc.; fair and honest 
criticism excepted.) 1 yr. or $1,000. 

Florida Laws, 1917, c. 7392, No. 134 (persuading or publicly 

attempting to persuade a person not to enlist in 
war or when " our foreign relations tend to indi- 
cate an impending war or state of war"). 
Misdemeanor. 

Hawaii Laws, 1918 sp., Act 19 ("language calculated or 

tending to discourage or prevent the vigorous pros- 
ecution of the war"; "disrespect to any flag of 
the United States"; "contemptuous or abusive lan- 
guage about any allied nation or its flag or uni- 
form"; also peace clauses). 1 yr., $1,000. 

Iowa (See sedition statute, part II; no express war pro- 

vision, but opposition punished in:) 

State V. Gibson, 174 N. W. 34 (1919). 

Louisiana Laws, 1917 sp., No. 10 (like Minn., 1917). 3 mos.- 

1 yr., $100-$500. 

Laws, 1918, No. 138 (like contempt part of Es- 
pionage Act of 1918). 5 yrs., $50-$5,000. 
(See sedition statute, part II.) 

Minnesota Laws, 1917, c. 463 (see text; repealed by next statute). 

1 yr., $100-$500. 

399 



400 



APPENDICES 



State V. Holm, 139 Minn. 267; L. R. A. 1918 
c. 304. (1918). 

State V. Spartz, 140 Minn. 203 (quashed). 

State V. Freerks, 140 Minn. 349. 

State V. Townley, 140 Minn. 413 (quashed). 

State V. Kaercher, 141 Minn. 186. 

State V. Luker, 169 N. W. 700 (1918). 

State V. Hartung, 169 N. W. 712 (1918) (dis- 
sent). 

State V. Gilbert, 169 N. W. 790. 

State V. Martin, 169 N. W. 792 (dissent). 

State V. Deike, 172 N. W. 777 (1919 reversed). 

State V. Gilbert, 171 N. W. 798. 

State V. Townley, 171 N. W. 930 (ind. good). 

State V. Rempel, 172 N. W. 919 (reversed). 

State V. Ludemann, 172 N. W. 887 (reversed). 

State V. Rempel, 172 N. W. 888 (reversed). 

State V. Randall, 173 N. W. 425. 

Laws, 1919, c. 93 (practically all of U. S. Act of 
1918, except obstructing enlistment). 20 yrs., 
$20,000. 

Montana Laws, 1918 sp., c. 11 (model for U. S. Act of 1918). 

1-20 yrs., $200-$20,000. 



Nebraska 



New Jersey 



State V. Kahn, 182 Pac. 107 (1919). 
State V. Griffith, 184 Pac. 219 (1919) (re- 
versed). 
State V. Wyman, 186 Pac. 1. 
State V. Smith, 188 Pac. 644 (1920 reversed). 
State V. Smith, 190 Pac. 107 (reversed). 
. Ex parte Stair, 263 Fed. 145 (habeas corpus 
denied). 

Laws, 1919, c. 77 (copies U. S. Act of 1917 for war, 
and rest of U. S. Act of 1918 for all times). 1-20 
yrs., $200-$20,000. 

Laws, 1918 sp., c. 5 (very wide; punishes conceal- 
ment of knowledge that sedition has been com- 
mitted; also any violation of U. S. Act of 1917.) 
20 yrs., $10,000. 

Gerdes v. State, 175 N. W. 606 (1919) (re- 
versed). 



Laws, 1918, c. 36 (like Minn., 1917). 
$2,000. 



7 yrs., $100- 



State V. Tachin, 106 Atl. 145 (1919) ; 108 Atl. 
318 (dissent). 

(See sedition statute, part II). 



APPENDICES 



401 



Texas Laws, 1918 (4th Called Sess.), c. 8 (like La.). 2-25 

yrs. 

Ex parte Acker, 212 S. W. 600 (1919). 
Fromme v. State, 212 S. W. 501. 
Meyer v. State, 212 S. W. 504. 
Ex parte Meckel, 220 S. W. 81 (1920, held un- 
constitutional). 3 mos.-l yr., $100-$1,000. 

Wisconsin Laws, 1918 sp., c. 13 (like Minn., 1917). 1 yr., $1,000. 

(Note: In addition to the sedition statutes mentioned, several states 
during the period of hostilities passed criminal syndicalism laws, see 
part II — Arizona, Idaho, Minnesota, Montana, South Dakota.) 



Part II 

Statutes not Limited to War. (See pp. 180-194 of text.) 

A. Red Flags and Other Insignia: 

Arizona Laws, 1919, c. 11. 6 mos., $100-$300. 

California Laws, 1919, c. 142. Felony. 

Colorado Laws, 1919, c. 171. 1-10 yrs. 

Connecticut Public Acts, 1919, c. 35. 6 mos., $200. 

New Haven Red Flag Ordinance (1919), 29 Yale L. 
Journ. 108. 

Delaware Laws, 1919, c. 231. 15 yrs., $2,000. 

Idaho Laws, 1919, c. 96. 1-10 yrs., $1,000. 

Illinois Laws, 1919, p. 420, sec. 265 f. 1-10 yrs. 

Indiana Laws, 1919, c. 125 (preamble referring to Russia). 

6 yrs., $5,000. 

Iowa Laws, 1919, c. 199. 6 mos., $1,000. 

Kansas Laws, 1919, c. 184. 18 mos.-3 yrs. 

Massachusetts Laws, 1913, c. 678, sec. 2 (repealed by Laws, 1915, 
c. 255). 6 mos., $100. 

Comm. V. Karvonen, 219 Mass. 30 (1914). 

Michigan Law/, 1919, No. 104. 5 yrs., $1,000. 

Minnesota Laws, 1919, c. 46. Felony. 

Montana Laws, 1919, c. 25. 1-5 yrs., $600. 



402 APPENDICES 

Nebraska Laws, 1919, c. 208. 6 yrs., $1,000. 

New Jersey Laws, 1919, c. 78. 15 yrs., $2,000. 

New Mexico Laws, 1919, c. 33. 6 mos., $100. 

New York Laws, 1919, c. 409. Misdemeanor. 

Oklahoma Laws, 1919, c. 133. 10 yrs., $1,000. 

Oregon Laws, 1919, c. 35. 10 yrs., $1,000. 

South Dakota Laws, 1919, c. 191, 30 days, $100. 

Utah Laws, 1919, c. 129. 1-10 yrs., $1,000. 

Vermont Laws, 1919, c. 195. 6 mos., $200. 

Washington Laws, 1919, c. 181. Felony. 

West Virginia Laws, 1919, c. 24, sec. 2. 1 yr., $100-$500 (first of- 
fense) ; 1-5 yrs. (second offense). 

Wisconsin Laws, 1919, c. 369. $10-$100 (30 days on default). 

B. Statutes Against Incitement to Specific Acts of Violence: 

(Note: The grouping adopted below is necessarily somewhat arbi- 
trary. Groups B-E run into one another, and the line between sedi- 
tion and syndicalism is not always clear.) 

* Massachusetts Laws, 1919, c. 191. 3 yrs., $1,000. 

* New Jersey Laws, 1908, c. 278. High misdemeanor. 

State V. Boyd, 86 N. J. L. 75; 87 N. J. L. 328 
(1915). 

State V. Quinlan, 86 N. J. L. 120; 87 N. J. L. 
333 (1915; with dissenting opinion). 

State V. Scott, 86 N. J. L. 133 (1914) (re- 
versal). 

Vermont Laws, 1919, No. 194 (like Mass., but has "indi- 

rectly"). 3 yrs., $1,000. 

C. Statutes Against Incitement to Crime Generally: 

Indiana Laws, 1919, c. 125, sec. 2 (includes advocacy of 

revolution by "general cessation of industry"). 
5 yrs., $5,000. 

Washington Laws, 1909, c. 249, sec. 312. Gross misdemeanor. 

State V. Fox, 71 Wash. 185 (1912). 
Fox V. Washington, 236 U. S. 273 (1915). 



APPENDICES 403 

Wyoming Laws, 1919, c. 76. 6 yrs., $5,000. 

D. Statutes Against Criminal Anarchy: 

*New York Laws, 1902, c. 371. 10 yrs., $5,000: 

Von Gerichten v. Seitz, 94 App. Div. 130 
(1904). 

Washington Laws, 1909, c. 249, sees. 311, 314-316. 10 yrs., $5,000. 
State V. Lowerj', 104 Wash. 620 (1918). 



E. Peace-Time Sedition Statutes: 

* Conriecticut Public Acts, 1919, c. 191 (public advocacy of "any 
measure, doctrine, proposal or propaganda intended 
to injuriously aflFect the government" of U. S. or 
Conn.). 3 yrs., $1,000. 

Public Acts, 1919, c. 312 ("abusive, disloyal, scur- 
rilous matter about form of government of U. S., 
military forces, etc., or matter intended to bring 
them into contempt, or which creates or fosters 
opposition to organized government"). 5 yrs., 
$500. 

Hawaii Laws, 1918 sp.. Act 19 (like contempt part of Es- 

pionage Act of 1918; also war clauses and peace 
clauses). 1-10 yrs., $100-$1,000. 

Illinois Laws, 1919, p. 420, adding to Criminal Code sees. 

265 a-g (advocacy of reformation or overthrow of 
present representative form of government by vio- 
lence or other unlawful means; issuing books, etc.; 
membership in society, etc.) 1-10 yrs. 

Iowa Laws, 1917, c. 372 (exciting or attempting to excite 

insurrection or sedition, advocating subversion or 
destruction by force of la. or U. S. government; 
attempting to excite hostility or opposition to 
them; membership in association, etc.). 20 yrs., 
$1,000-$10,000. 

State V. Gibson, 174 N. W. 34 (1919). 

Louisiana Laws, 1917 sp.. No. 24 (like la.). 20 yrs., $10,000. 

Montana Laws, 1919, c. 77 (like war-time statute, swpra, and 

U. S. Espionage Act of 1918). 1-20 yrs., $200- 
$20,000. 



404! 



APPENDICES 



New Laws, 1919, c. 155 (advocating overthrow of govern- 

Hampshire ment or interference with any public or private 

right whatever by force; any act which tends to 
encourage violation of law). 10 yrs., $5,000. In- 
junction provision. 

New Jersey Laws, 1918, c. 44 (like la.). 20 yrs., $10,000. 

New York Laws, 1917, vol. 2, c. 416 (removal of officers, civil 

service employees, and teachers for treasonable or 
seditious acts or utterances). 

Laws, 1918, vol. 2, c. 246 (elimination of school text- 
books containing seditious or disloyal matter). 

Pennsylvania Laws, 1919, No. 275 (any publication, utterance, or 
conduct which tends to cause any outbreak of vio- 
lence, to encourage conduct with a view of over- 
throwing by force or show or threat of force the 
government of U. S. or Pa., to encourage any 
overt act with a view of bringing them into hatred 
or contempt, or to incite harm to officials or public 
property, etc. Of. Palmer federal bill). 20 yrs., 
|l00-$10,000. 

West Virginia Laws, 1919, c. 24 (see text). 1 yr., $100-$500 (first 
oifense); 1-5 yrs. (second oflFense). 

Criminal Syndicalism Statutes (substantially of a uniform type, unless 
otherwise noted) : 

Alaska Laws, 1919, c. 6. 10 yrs., $5,000. 

Arizona Laws, 1918 sp., c. 13 (special wording). 10 yrs., 

$5,000. Message of Governor Hunt, refusing to 
sign this Act, ibid. 49; Senate and House Reso- 
lutions denouncing the I.W.W., ibid. 55, 67. 

* California Laws, 1919, c. 188. 1-14 yrs. 

Ex parte McDermott, 183 Pac. 437 (1919). 

Hawaii Laws, 1919, c. 186. 10 yrs., $5,000. 

Idaho Laws, 1917, c. 145. 10 yrs., $5,000. 

Iowa Laws, 1919, c. 382. 10 yrs., $5,000. 

Michigan Laws, 1919, No. 265. 10 yrs., $5,000. 

Minnesota Laws, 1917, c. 215. 10 yrs., $5,000. 

State V. Moilen, 167 N. W. 345 (1918); 1 
A. L. R. 331. 



APPENDICES 405 

Montana Laws, 1918 sp., c. 7. 1-6 yrs., $200-$1,000. 

Nebraska Laws, 1919, c. 261. (Adds "or for profit.") 1-10 

yrs., $1,000. 

Nevada Laws, 1919, c. 22. 10 yrs., $5,000. 

Ohio Laws, 1919, House Bill No. 477. 10 yrs., $5,000. 

Oklahoma Laws, 1919, c. 70. (Adds "or for profit.") 10 yrs., 

$5,000. 

Oregon Laws, 1919, c. 12. (Adds "or for profit.") 1-10 

yrs., $1,000. 

South Dakota Laws, 1918, c. 38. 1-25 yrs., $1,000-$10,000. 

Utah Laws, 1919, c. 127. 1-5 yrs., $200-$l,000. 

Washington Laws, 1919, c. 3. 10 yrs., $5,000. (Repealed by the 
following act.) 

Laws, 1919, c. 174 (special wording, favoring "crime, 
sedition, violence, intimidation or injury" as a 
means of change). Felony. 

Laws, 1919, c. 173 (special wording, favoring sabo- 
tage). Felony. 



INDEX OF CASES 



Note: Prosecutions are indexed by the name of the accused, whether 
conducted by the King (Rex), the Queen (Regina), the United States, 
or a state (People, Commonwealth, Respublica). All other cases are in- 
dexed by the plaintiff's name. Important prosecutions and election 
cases are also in the General Index. Many federal and state prosecu- 
tions not discussed in this book are indexed in Appendices II and V. 



Abbott, Be, 320 n., 321 n. 
Abrams v. U. S., 120-160; see 

General Index. 
Acklen Election Case, 349 n. 
Ahearn, P. v., 352 n. 
Ahlers, R. v., 326 w, 
Albers, U. S. v., 57 n., 59 n. 
American School of Magnetic 

Heating v, McAnnulty, 105 n., 

285 n, 
American Socialist Society v. 

U. S., 27 and n., 308, 356. 
Aso, U. S. v., 167, 168 and n., 173, 
Atchison etc. Ry. v. Brown, \\n. 
August V. U. S., 149 n. 
Ault, U. S. v., 115 n. 

Bailey v. Alabama, 36 n. 

Baker, U. S. v., 101 n. 

Baltzer, U. S. v., 64, 65 and n., 
88 n. 

Bancroft v. Frear, 320 n. 

Barker, P. v., 340 n., 342 re. 

Beatty v. Gillbanks, 183 and n. 

Beresford-Hope v. Lady Sand- 
hurst, 319 n. 

Berger Election Case, 315-332; 
see General Index. 

Bernat and Dixon, Ex parte, 
272 n. 

Billingsley v. U. S., 166 n. 

Blanding, C. v., 8 n., 24 n. 

Blodgett, U. S. v., 62, 64. 

Blount, Expulsion Case, 346 71. 

Blum, Matter of, 304 n. 

Bollman and Swartwout, Ex parte, 
325 n. 

Bosny v. Williams, 236 and ». 

Boutin, U. S. v., 57 n. 

Boyd, S. v., 192 n. 



Boyd V. U. S., 299, 300, 303 »., 

335 ». 
Bradlaugh Election Case, 344 
Bright Expulsion Case, 346, 347, 

350 n. 
Brinton, U. S. v., 83. 
Bryant v. U. S., 40 ?i. 
Buessel, U. S. v., 128 «. 
Burman, P, v., 183 ». 
Bush, P. ex rel., v. Thornton, 

342 n., 347 n. 
Butler V. Perry, 36 n. 

Campbell v. Cannon, 347 n., 351 n. 
Cannon, Election and Expulsion 

Cases, 345 n., 347 n., 351 and n. 
Carlisle v. U. S., 326 n. 
Casement, R. v., 325, 326. 
Chandler, S. v., 31 n. 
Charges to Grand Jury, 327 ». 
Chin Wah, Re, 241 n. 
Chin Yow v. U. S., 255 n. 
Clap, C. v., 24 n. 
Clark, S. v., 151 n. 
Clark, U. S. v., 215 and n. 
Clarke, Ex parte, 307 «. 
Claudius v. Davie, 7 n. 
Cobbett, Trial of, 8n. 
Coaks, R. v., 319 n. 
Coldwell, U. S. v., 9n. 
Colyer and KatzeflF v. Skeffington, 

242-249, 257, 270 and n., 271, 

339. 
Comfort V. Fulton, 304 n. 
Connolly v. Union Sewer Pipe Co., 

282 k, 
Cowan V. Fairbrother, 12 n. 
Croswell, P, v., 30 and n. 
Cummings v. Missouri, 302 n., 

342 ft. 



407 



408 



INDEX OF CASES 



Curran, U. S. v., 128 n. 
Cuthell, R. v., 58 and n. 

Dailey v. Superior Court, 61 n.c 
Dalton, S. v., 344 n. 
Danbury Hatters' Case, 53 n. 
Darmer, U. S. v., 110 ». 
Darwin, S. v., 112 n, 
Davidson v. New Orleans, 16 n. 
Dean of St. Asaph, R. v., 8 n., 9 n. 
Debs V. U. S., 90-93; see General 

Index. 
Dennie, Resp. v., 8 n. 
Denson, U. S. v., 57 n., 59 n. 
Dobbs' Case, 150 ». 
Doe V. U. S., 60, 67. 
Drakard, R. v., 27, 28. 

Eastman, P. v., 171 n. 
Eastman, U. S. v., 85 n., 86, 126. 
Ehrich v. Root, 306 n. 
Eisner v. Macomber, 106 n. 
Entinck v. Carrington, 298 n., 304. 
Equi, U. S. v., 33 n., 128 ». 

Flagg, C. v., 165. 

Fong Yue Ting v. U. S., 2B5 n., 

241 n., 249 n. 
Fontana, U. S. v., 48 n. 
Foster, Matter of, 307 to. 
Fox, S. v., 188 n. 
Fox V. Spicer, 42 n. 
Fox V. Washington, 188 n. 
Fraina v. U. S., 13 n., 69 and n. 
Frank v. Skeffington, 252-254. 
Freerks, S. v., 57 n. 
French v. Senate, 340 n. 
Fricke, U. S. v., 41 n., 326 n. 
Frishraan, C. v., 182-185. 
Frohwerk v. U. S., 15, 16 and n., 

88 n.. 90. 
Furman, P. ex. rel, v. Clute, 

320 n. 

Garland, Ex parte, 342 «. 
Gegiow V. Uhl, 239 to. 
Gibson, S. v., Ill n. 
Gillow, R. v., 150 n. 
Gilmore, S. v., 344 n. 
Goetcheus v. Matthewson, 342 n. 
Goldman, U. S. v., 13 n., 41 n., 126. 
Goldsmith, U. S. v., 57 n., 59 n. 
Goldstein i\ U. S., lOn., 60, 61. 
Gompers v. Bucks Stove and 

Range Co., 53 n. 
Gompers v. U. S., 32 n. 



Grafton r. Connor, 349 ». 

Granzow, U. S. v., 57 n. 

Grau, U. S. ex rel, v. Uhl, 272 ». 

Green v. Shumway, 342 n. 

Guiney v. Bonham, 272 n. 

Gulf etc. Ry. v. Ellis, 282 ». 

Haffer, P. v., 172 n. 
Hall, U. S. v., 59 n. 
Halliday, R. v., 42 «. 
Halter v. Nebraska, 112 n. 
Harris Expulsion Case, 345 n., 346. 
Harrison, Ex parte, 11 n. 
Harshfield v. U. S., 59 and n., 93 n. 
Hatzel V. HaL, 341 n. 
Haj-wood, U. S. v., 85 n., 87 n., 163. 
Head v. U. S., 88 n. 
Henning, U. S. v. 48 n. 
Herbert Expulsion Case, 345 ». 
Hiss V. Bartlett, 340 n. 
Hitchcock, U. S. v., 57 n. 
Hodges, U. S. v., 326 n. 
Holm, S. v., Uln. 
Houston V. Moore, 112 n. 
Hunt, R. v., 27, 28, 68. 
Hurtado v. California, 36 n. 

I. C. C. V. Brimson, 242 ». 

Jackson, Ex parte, (Fed.), 241 »., 

242 n., 273 n., 274. 
Jackson, Ex parte, (U. S.), 108 ». 
Ju Toy, U. S. v., 238 n., 255 and n. 

Kammann v. U. S., 93 n. 
Kansas v. Colorado, 34 n. 
Karvonen, C. v., 186 n., 197 n. 
Kaufman, U. S. v., 57 n. 
Kentucky v. Dennison, 191 n. 
Kentucky Members Election Case, 

350 n. 
Kirchner, U. S. v., 57 n. 
Konkel v. S., 112 ». 
Kraift, U. S. v., 57 n. 
Kramer, U. S. v., 110 n. 
Kumpula v. U. S., 83 and n. 

Listman, U. S. v., 115 n. 

Loewe v. Lawlor, 53 n. 

Lopez V. Howe, 278-280. 

Louthan v. C, 11 n. 

Lowery, S. v., 272 n. 

Low Hong, U. S. v., 255 n. 

Low Wah Suey v. Backus, 238 »., 

239 n. 
Ludemann, S. v., 60 n. 



INDEX OF CASES 



409 



Lynch, P. v., Ill n. 

Lyon Expulsion Case, 329, 345. 

McClure, S, v., 7 n. 
McCulloch V. Maryland, 34 n. 
McDonald, P. v., 303 n. 
McGrorty v. Hooper, 351 n. 
McKee, S. v., 11 n. 
McKee v. Young, 347 71,, 350 n. 
McNeill, Re, 3Un. 
Magon V. U. S., 214 », 
Mahaney, P. v., 341 n. 
Maraaux v. U. S., 80 n. 
Martin, U. S. v., l2Sn. 
Masses Publishing Co. v. Patten, 

46-56; see General Index, 
Maxwell v. Cannon, 347 n., 351 n. 
Meckel, Ex parte, 111m., 192 m. 
Merryman, Ex parte, 34 n., 81 n. 
Metcalf, S. ex rel., v. Dist. Ct., 

11 M. 
Miller, In re, 257, 261 n., 339. 
Miller, U. S. v., 57 n. 
Milligan, Ex parte, 33 and n., 42 n., 

69 n., 81 n., 96 n., 113, 116, 117 m., 

325. 
Milwaukee Social Dem. Pub. Co. 

V. Burleson, 316 n. 
Mitchell, Ex parte, 239 m. 
Moilen, S. v., 192 m., 272 n. 
Molyneux, P. v., 85 n. 
Moore, U. S. v., 150 m. 
Most, P. v., 205, 206. 
Most, K. v., 205 n. 
Moy Suey v. U. S., 255 n. 
Moy Wing Sun v. Prentis, 241 n. 
Muir, R. v., 28, 146 m. 
Mutual Film Co. v. Industrial 

Commn., 10 n. 

Nagler, U. S. v., 57 n. 

Neagle, Be, 200. 

Nearing, U. S. v., 27, 53 m., 55 n., 

85 m., 125. 
Nesin, P. v., 110 n. 
New Yorker Staats-Zeitung v. 

Nolan, 110 n. 
Nishimura Ekiu v. U. S., 230 n. 
Norman t'. Mathews, 42 n. 

Ogletree v. S., 150 n. 
O'Hare, U. S. v., 83, 162. 
Orear v. U. S., 40 m. 
Oswald, Resp. v., 8 n. 

Pacific Ry. Com'n, In re, 242 ». 
Palmer, R. v., 28. 



Pape, U. S. v., 59 and 60 m. 
Patterson v. Colorado, 9 n. 
Peaslee, C, v., 53, 89. 
Pel ibliton, R. v., 150 n. 
Pettine, Ex parte, 280 n., 281 ». 
Phillips, U, S. v., 13 M., 41 n., 79 n., 

126. 
Pierce, S. v., 11 m. 
Pierce, U. S. v., 13 n., 94 and n., 

101-106, 134, 135 m., 285 m. 
Pioneer Press Co., S. v., 12 m. 
Powell Expulsion Case, 346. 
Preis, In re, 257, 261. 
Printing Co., S. v., 12 n. 
Public Clearing House v. Coyne, 

108 m. 

Quinlan, S. v., 189 n. 

Ragan, S., ex rel., v. Junkin, 11m. 
Rathbone v. Wirth, 343 m. 
Reeder, U. S. v., 41 m. 
Roach Election Case, 349 tc. 
Roberts Election Case, 345 n., 

347 71., 350 n., 352 and m. 
Roberts v. People, 150 n. 
Roberts, Resp. v., 326 n. 
Robertson v. Baldwin, 7 n., 36 n. 
Robinson, U. S. v., 41 n., 324 n., 

326 n., 327 7i. 
Rogers v. Common Coimcil, 343 m. 
Rogers, U. S. v., 166 n. 
Ronnfeldt v. PhilUps, 119 m. 
Russell, Bertrand, R. v., 2, 42»,, 

59 and n. 

St. Louis etc. Ry. v. Griffin, 11 n. 
Samson v. Columbia, 110 m. 
Sandberg, U. S. v., 57 n., 59 m. 
Sanford v. Richardson, 305 n. 
Schaefer v. U. S., 85, 87, 94-101, 

106, 218 «., 265 and n. 
Schenck v. U. S., 9 m., IQ n., 88- 

93; see General Index. 
Schoberg, U. S. v., 38 m., 59 m. 
Schurmann v. U. S., 110 n, 
Scott, S. v., 189 m. 
Selective Draft Law Cases, 7 m., 

40 M. 
Shaffer, U. S. v., 57 n. 
Shelley's Case, 38. 
Silverthorne Lumber Co. v. U, S., 

242 H., 299 m., 300. 
Skuy V. U. S., 149 n. 
Smith V. Brown, 320 »., 347 m., 

850 ». 



410 



INDEX OF CASES 



Smoot Election Case, 347 «., 352, 

353. 
Socialists Election Case, 382-364. 
Spirit of '76, U. S, v., 10, 38 n., 

43, 60, 61. 
Star V. Brush, 110 w. 
Star Opera v. Hylan, 110 »., 183 n. 
Stark Election Case, 347%., 349, 

350 and n. 
Starr, Ex parte, 113 n. 
Steene, U. S. v., 116 ». 
Stephens, U. S, v., 51 n. 
Stern v. Remick, 242 n. 
Stilson V. U. S., 93 and n. 
Stokes, U. S. v., 13 n., 28 n., 68, 

59, 67, 87»., 92, 118, 119. 
Strong, U. S. v., 115 n. 
Stuppiello, U. S. v., 280 n. 
Sugarman v. U. S., 88 n., 89, 90. 
Sultan V. Star Co., 110 n. 
Swelgin, U. S. v., 272 and 273 re. 
Swift V. U. S., 53 n. 
Symes v. Trimble, 350 n, 

Tachin, S. v.. Ill n., 112 n., 192 n. 

Taubert, U. S. v., 81 n. 

Thomas Election Case, 347 n., 

350 n. 
Toledo Newspaper Co. v. U. S., 

12 and n. 
Townley; see General Index. 
Truss, In re, 267, 
Turner v. Williams, 275, 277, 278, 

283. 



Van Lonkhuyzen v. Daily News, 

110 «. 
Vegelahn v. Guntner, 53 n. 
Von Bank, U. S. v., 57 n. 
Von Gerichten v. Seitz, 188 n. 

Waldman Election Case, 332-864. 

Waldron, U. S. v., 61, 62. 

Wallace, U. S. v., 13 n., 62. 

Wallace v. Georgia Ry., 11 n. 

Weeks v. U. S., 241 n., 299 n., 300. 

Weems v. U. S., U8n. 

Weinsberg, U. S. v., 57 n. 

Weist, U. S. v., 57 n. 

Wells V. U. S., iln., 168 and n., 
173. 

Werner, U. S. v., 41 n., 327 n.; see 
Schaefer v. U. S. 

Wheeler, U. S. v., 45 n. 

WHiitaker, P. v., 110 n. 

W^hite, U. S. v., 57 n. 

Whittemore Election Case, 349 ». 

Wiborg V. U. S., 149 ». 

Wilkes V. Wood, 297 n. 

Wilkes Election Case, 311-315, 328, 
356. 

Wishek, U. S. v., 48 n. 

Wong Quong Wong, U. S. v., 
24:1 n. 

WorkingiTfien's Co-operation Pub- 
lishing Association, U. S. ex rel., 
v. Burleson, 115 n. 

Wursterbarth, U. S. v., 109, 110 ». 



U. S. Steel Corp., U. S. v., 106 n. ^oung, U. S. v., 325 n., S26n. 



Vallandigham, Ex parte, 117 n., 
326. 



Zenger trial, 23 and n. 
Zimmerman, U. S. v., 82. 



GENERAL INDEX 



Note: The Index of Cases should also be consulted for prosecutions, 
etc, since only a few of the most important are listed in this index. 



Abeecrombie, J. W., Solicitor of 
the department of Labor, 243, 
248, 249, 258. 

Abolitionists, 3, 209, 210, 372. 

Abrams, Jacob, 123-126, 131, 138 n., 
141, 142, 148; trial and decision, 
9»., 22 71., 46, 68, 85 n., 93, 94, 
100, 106, 116; chapter III., 120- 
160, 202, 207, 215, 216, 220. 

Adams, John, 2, 210, 299; on as- 
sassination, 223. 

Addison, Judge, 21 n. 

Administrative law, conclusive- 
ness of the decisions of officials: 
post-office, 45, 54, 106-109, 199, 
233, 234; deportations, 232-240, 
254-256, 291, 292; treaty funds 
and Land Office, 233; taxation, 
233; danger of wide range of 
administrative discretion in 
criminal statutes, 75. 

Agents provocateurs, 269-271. 

Agitators, value for liberty, 294, 
295. 

Aldeich, Edgar, Judge, 81. 

Alice in Wonderland, 232, 334. 

Alien Law of 1798, 1, 162; text 
summarized, 29; compared with 
contemporary deportations, 109, 
240. 

Aliens, denaturalization of, see 
same; deportation of, 109, 110, 
229-293; value to U. S., 227, 236, 
289, 293; reasons for not be- 
coming naturalized, 235, 236. 

Altercations, language in, prose- 
cuted, 59 and n., 68. 

American Federation of Labor, 
193, 198, 255, 267, 272 »., 278. 

American Labor Party, 267. 

American Labor Y ear-Book, 257, 
273 n., 305 TC., 308 n., 319 n. 

American Protective Leaglte, 71, 
308. 



American Revolution, 2, 9, 17, 
21, 24, 46, 203, 209, 299, 326 n.; 
censorship of moving pictures, 
10, 60, 61. 

American Socialist Society, 
Rand School, 308-310; prosecu- 
tion, 27 and n., 308, 356. 

Americanism, 178, 227, 331, 362, 
372, 

Amidon, C. F., Judge, 46, 48 n., 
56, 76, 83. 

Amnesty, after Civil War, 2; 
after World War, 116, 117, 118 
and n. 

Anarchists, 2, 83, 97, 223, 309; 
in Abrams case, 123, 142-147, 
159; past outrages, 164, 165; 
regulation of explosives, 168, 
169; state statutes against crim- 
inal anarchy, 187-194; anarchy 
acts generally, 163-228 passim; 
extradition, 191 n.; deportations 
of violent anarchists, 275; of 
philosophical anarchists, 275- 
280, 285. 

Anderson, A. B., Judge (Ind.), 
82. 

Anderson, F. M., on Sedition 
Law of 1798, 78 n., 81 n. 

Anderson, G. W., Judge (Mass.), 
70 n., Win., 242-250, 253-257, 
268. 

Angell, W. F., on Caillaux trial, 
136 n. 

Ansell, S. T., General, on militia, 
lUn. 

Antin, Mary, 82. 

Antonelli, Etienne, La Russie 
Bolcheviste, 132 n. 

Antony, funeral oration, 55, 214. 

Ariete, El, anarchistic society, 
167, 168, 173, 174. 

Arizona, Bisbee deportations, 45; 
syndicate law, 190. 



411 



412 



GENERAL INDEX 



Aemy, criticism of flogging in, 27, 
28, 68; abuse of uniform, crime, 
45, 114, 115; criticism of incom- 
petent general bj^ troops, 50. 
See Conscription; War. 

Army and the Press, Relation Be- 
ticeen, 98, 99. 

Arrests, without warrant, in Civil 
War, 116, 117; under Espionage 
Act, 123, 159; in deportation 
proceedings, 237, 241 and «., 
243-246, 248; of citizens for de- 
portation, 242, 244, 245, 249, 
252-256; general warrants, 296, 
297. 

Art, and freedom of speech, 17, 
31, 32, 175. See Censorship. 

Assassination, 52, 163-169 passim, 
173, 175, 196, 198, 199, 205 
passim, 230, 231, 263, 268. 

Assembly, right of, 5, In., 50; in 
war, 57, 58; in peace, 172, 177, 
178, 180, 182-185, 205, 206; per- 
mits for use of streets, 15, 180, 
182, 183; red flag laws, 180-187. 

Association, guilt by, 112, 113, 
192, 193, 230, 231 and n., 250, 
257, 262-268, 281, 285, 336, 337, 
360, 361. 

Associations, to suppress sedition, 
71, 72, 357. 

Atheists, 2, 172 w., 196 and n. 

Attempts, criminal, 304 n.; rela- 
tion to freedom of speech, 25, 
165, 173; to Espionage Act, 61- 
53, 88, 89, 155; attempts to ob- 
struct recruiting, 41, 44, 46; in 
federal crimes, 166, 201. 

Attorney General, alleged Star- 
Spangied Banner prosecutions, 
102, 103; supervision over 
iudges, 84, 85; no control over 
deportations, 242, 252. See 
Gregory; Palmer; Justice, De- 
partment OF. 

Audience, character of, as afi'ect- 
ing criminality of utterances, 
57-61, 206. 

Bagehot, Walter, 34, 140 »., 197, 

207, 289 n. 
Bail, under Espionage Act, 46; in 

deportations, 248. 
Bakunin, 221. 
Baldwin, Roger, 193 n. 
Barkley, F. R., 248 «., 255 «, 



Beale, Joseph H., on criminal at- 
tempts, 51 nn. 

Bean, R. S., Judge, 33 n. 

Beard, imprisonment for wearing 
long, 172, 183. 

Beckstrom, J. W., prosecution, 
102 n. 

Beecher, Edw., Alton Riots, 3n. 

Belgium, 63. 

Bentham, J., 266. 

Berger, Victor L., Milwaukee 
Leader, 64, 107, 315-318, 323; 
prosecution, 79, 101, 162, 318, 
319, 323, 331; exclusion from 
Congress, 201, 315-332, 333, 336. 

Berkman, a., 47. 

Berri, Due de, 175. 

Bettman, Alfred, 73, 125 n., 167, 
262 ?i., 263 n. 

Beveridge, a. J., Life of Marshall, 
lire., 22, 23 n., 65 n., 81 »., 
211 n., 265 n., 330 n. 

Bible, 110, 332, 333; prosecution 
for quoting, 218. See Jesus. 

BiKLE, H. W., on sedition law, 
199 n., 204 m. 

Billboard-Posters, indecent, 10. 

Bill of Rights, adopted by U. S., 
4; important for interpreting as 
well as invalidating statutes, 4- 
6; comparison with European 
constitutions, 5 and n.; subject 
to implied exceptions, 7; apply 
in war, 33, 34, 42 n., 86 and n.; 
do not crystallize antiquity, 35, 
36; deportation, 281-291;' mis- 
cellaneous references, 3, 228. 

BisBEE deportations, 45. 

Bishop, on intent, 150 n. 

Bismarck, sedition legislation, 263. 

Black, Jeremiah, 69, 113. 

Blackstone, William, 9, 31 n.; 
definition of freedom of speech, 
8-12, 19, 21, 22 n., 23 n., 31, 32, 
108, 199; on incitement, 53; on 
Wilkes, 313. 

Blanc, Louis, 286 n. 

Blasphemy, 14, 170, 172. 

Bledsoe, B. F., Judge, 10, 38. 

Bolshevists, in U. S., 2, 60-120 
passim, 124, 168, 185, 196, 197, 
219, 261, 309; Overman Com- 
mittee, 134, 135, 164. See Rus- 
sia. 

Bombs, 163-169 passim, 196, 212, 
268. 



GENERAL INDEX 



413 



Bo2srDS. See Liberty Boxds. 

Books, danger of suppression un- 
der federal sedition law, 220- 
224; Rand School, 308-310. 

Borah, Senator, 37 n. 

Boston, 182-186, 191, 311. 

BotTHftuix, G. M., Judge, 59 n., 
273 n., 274. 

Bradlaugh, Charles, exclusion 
case, 344. 

Bradley, Joseph, Justice, 299, 335. 

Brakdeis, L. D., Justice, 53 n., 85, 
89, 94-106, 148, 202, 218, 285 m. 

Braxfield, Lord, 87, 146 n., 210. 

Breach of the peace, acts caus- 
ing, not protected by free 
speech clauses, 24, 25; punish- 
ment of language as, 74 and n., 
102 n., 110 n., Ill, 171, 172, 205, 
208. 

Brewer, Justice, 278. 

Bright, John, 104, 117. 

Brissenden, Paul, 292. 

Brook Farm, 177, 277. 

Browx, Philip A., French Revolu- 
tion in English History, 28 n., 
146 n. 

Bryce, James, 6 n., 363 n. 

Buford, 230, 249. 

Bureau of Investigation, 164, 
195, 243-247, 269-271. See Jus- 
tice, Department of. 

Burke, Edmund, 266, 313, 314, 
338, 355, 361. 

Burleson, A. R., Postmaster Gen- 
eral, 107, 108, 109 n., 115, 199, 
229, 335. 

Burnside, Ambrose E., General, 
suppression of newspapers, 116. 

Burr, Aaron, 201, 265. 

Byron, 52. 

Caffey, F. Z., U. S. Attorney, 126. 

Caillaux, Mme., trial, 136 n. 

California, syndicalism prosecu- 
tion, 190 n.; Oriental question, 
209. 

Callender, prosecution under Act 
of 1798, 78 n. 

Cambridge, raids, 311. 

Camden, Lord, 297, 298. 

Caminetti, a., Commissioner Gen- 
eral of Immigration, 243, 251. 

Campbell, Lord, 344. 

Canada, free speech in, 42, 218, 
269. 



Carroll, T, F., on war laws, 42 n., 
325 71. 

Cartoons, Opper, 52; in Masses, 
46. 

Casement, Sir Roger, treason 
prosecution, 325, 326. 

Censorship, press, 8-12, 19, 21, 
23 w., 25, 32, 38, 42 and n., 179, 
180; in Russia, 176, 294 n.; bill- 
boards, 10; moving pictures, 10, 
Qln., 179, 203 n.; theater, 172, 
175; mails, see Post-office, 
telegraph, 109 n.; of military 
information, 10, 98, 99; by 
municipalities, 110 «., 190, 191; 
foreign-language press, see 
same; Ex post facto censorship 
of books, 190, 220-224. 

Centralia shootings, 115, 163, 
197, 212. 

Chamberlain, Senator, sedition 
bill, 41, 42. 

Chase, Samuel, Justice, 80. 

Chase, S. P., Chief Justice, 33 ». 

Chatham, Lord, 250, 295, 296. 

Chesterfield, Lord, 52. 

Chicago Times, suppression, 116 
and 117 n. 

Chinese, exclusion of, 230 f., 255, 
273. 

Chivers, Ellen, testifies against 
Socialist assemblymen, 357, 358, 
364. 

CiBBER, Colley, 175. 

Citizens, American, arrests for 
deportation, see Arrests; in for- 
eign countries, 288 and n. 

Civil Relief Act, Soldiers' and 
Sailors', 112. 

Civil War, American, 2, 363; op- 
position to, 41, 46, 81, 90, 116, 
117; treason cases, 324; legisla- 
tion exclusions, 325-330, 345-353. 

Clarke, J. H., Justice, 87, 94, 
129, 139, 140-142, 148-159, 215, 
216. 

Claessens, August, N. Y. Social- 
ist assemblyman, 333, 356. 

Clay, Henry,' 330. 

Clayton, H. D., Judge, in Abrams 
trial, 28 n., 86 n., chapter III., 
125-148. 

Cobden, Richard, 117. 

Coke, Edward, 19. 

Colleges, expulsion of pacifist 
student, 110 ». 



414 



GENERAL INDEX 



Collier's Weekly, on telegraph 
censorship, 109 n. 

Columbia Law Review, 192 n., 
263 n. 

Columbia University, expels pac- 
ifist student, 110 n. 

CoLYER CASE, dcportations, 242- 
250, 257, 268, 270 and n., 271, 
339, 357. 

Common law, not embodied in 
constitutional definition of free 
speech, 14, 22-24, 170; of crimes 
not adopted in U. S. courts, 
22 

Communists, 52, 139, 172, 177, 188, 
223, 365; raids, 230, 242-272; 
under Espionage Act, 261; 
Communist Labor Party, 243 ff., 
250, 256, 257, 261 and n., 262, 
339; Communist Party of Amer- 
ica, 243, 250; origin, 256, 262, 
268; program and Secretary 
Wilson's decision, 256-262*; 
proof of membership in, 231 n., 
250, 257, 262-268; spies in, 268- 
272 ; Communist International, 
259, 260, 334. 

Commutations, of Espionage Act 
sentences, 73, 86 n. See Par- 
dons. 

Confederacy, control of the press, 
117 and n. 

Congress, 116; freedom of debates, 
3; criticism of, punished under 
Sedition Act of 1798, 29, 204; 
under Espionage Act, 62-64, 

102 ;f., 129; declaration of war 
against Germany, 40; used as 
evidence in prosecutions, 57, 

103 f.; freedom of discussion 
for elections, 62-65, 329-331; se- 
dition bills, 194-199; House 
Rules hearings, 198, 250-252; 
House Judiciary Committee, 
197; House Immigration Com- 
mittee, 251; repays fines of 1798, 
30, 157; Continental Congress, 
17; Confederate Congress, 117 n. 
See United States statutes; 
Sedition Bills; Espionage Act; 
Deportations; Legislative Ex- 
clusions (Berger, Test Oath 
Act, etc.). 

Connecticut, Bridgeport strike, 
153; sedition prosecution, 190 ft.; 
Hartford deportations, 246. 



Conscientious objectors, discus- 
sion of, 2, 47, 59, 86. 

Conscription, military, violation 
of, 40, 144, 145; constitution- 
ality, 7, 35, 40; criminal to dis- 
cuss, 57, 62, 88; advocacy of re- 
sistance to draft, 40, 41, 53, 57, 
88-90, 200; discussion opposing 
draft, 25, 57, 62, 64, 65, 86, 102; 
in Masses case, 46-56; opposing 
re-election of Congressmen who 
voted for, 62; urging rearrange- 
ment of quotas, 64, 65; men of 
draft age held within armed 
forces, 57, 58, 64; efficiency of 
draft organization, 40, 64; 
slacker round-up, 107, 108; in 
peace, 35, 115, 358. 

Conservatives, benefit from free- 
dom of speech, 3; some advocate 
violence, 260, 261. 

Conspiracy, at common law, 92, 
110 ji..; under United States 
Criminal Code, in war, 40-42, 46, 
81 ft., 90, 101, 148 ft., 168, 173; 
in peace, 166-169, 173, 196, 205, 
206, 213; does not cover injuri- 
ous conduct of single person, 41, 
50, 90, 167, 196; under Espion- 
age Act, 43, 45, 124, 265. 

Constant, Benj., 286. 

Constitution, see various topics, 
e.g.. Speech, freedom of; also 
United States Constitution, 
and the names of states; and 
Bills of Rights. 

Constructive measlties, proposed 
by writer, for opposition to 
war, 41, 46; for anarchv and 
violence, 165-169; for I. W. W., 
274, 275; for revolutionary 
aliens generally, 289-293. 

Contempt proceedings, 8, 11 n., 
12 ft., 15. 

Continental Congress, address to 
people of Quebec, 17. 

Conventions, political, prohibition 
of, invalidated by free speech 
clause, 11 ft. 

Conversations, prosecuted, 59 and 
ft. 

Cooley, Thomas M., on freedom of 
speech, 11, 13, 14, 48, 219 ft.; 
on searches and seizures, 301, 
303 ft., 304 ft., 305 ft.; on legisla- 
tive eligibility, 340 n. 



GENERAL INDEX 



415 



Copperheads, 41, 325. 

Corrupt practices, statute void 

under free speech clause, 11 n. 
Cory, H. E., N. J. sedition law, 

189 ». 
Courts martial, for sedition, 33 n., 

42. 
Creel, George, 108. 
Crijies, relation to free speech 

clauses, 14, 15, 16; normal law 

of, 164-180. 
Cruel and unusual punishment, 

excessive sentences as, 148 n. 
Cruelty, charges against oflScials, 

145, 146, 159, 189 n., 247, 248. 
Cudgel, liberty of the, 18. 
CuLLEN, Chief Justice, on exclu- 
sion for opinions, 352. 

Dallinger, F. W., Representa- 
tive, on Berger case, 331, 332. 

Darwin, Charles, 32. 

Davis, David, Justice, 33 n. 

Day, Justice, 241 n., 300. 

De Armond, Representative, 352 
and n. 

De Witt, S. A., N. Y. Socialist 
assemblyman, 333, 356. 

Debs, E. V., prosecution, 16, 22 n., 
79, 85-93 passim, 100, 117, 124, 
162, 212, 317, 360. 

Declaration of Independence, 60, 
209, 223. 

Defamation. See Libel. 

Defense of the Realm Act. See 
Great Britain. 

Denaturalization, of Pro-Ger- 
mans, 109, 110; under sedition 
bills, 198; of I. W. W., 272, 273; 
of philosophical anarchist, 280. 

Deportations, Bisbee, 45; from 
Russia, 176; of Americans from 
other countries, 288 and n.; 
from England, 263 n.; in history 
of persecution, 284; of aliens in 
U. S., 229-293; Act of 1798, 29, 
109, 240; effect of economic 
views of judges, 81; punish- 
ment for sedition, 198; federal 
power, 200, 230, 284; Statute of 
1918, 109, 110; text, 230, 231, 
240; of 1920, 230 n., 231 n.; ad- 
ministrative machinery, 232-240, 
291, 292; raids of January, 1920, 
230, 241-254, 292, 293; Palmer- 
Post controversy, 250-252; ar- 



rest of citizens, 242, 244, 245, 
249, 252-256; Communists, 256- 
272; Wilson decision on Com- 
munist Party, 251 f., 268; on 
Communist Labor Party, 261; 
proof of membership in pro- 
scribed associations, 231 n., 250, 
257, 262-268, 281, 285; use of 
spies, 268-272; I. W. W., 272- 
275; violent and philosophical 
anarchists, 276-280; effect of 
due process clause and First 
Amendment, 280-291 ; wisdom, 
284-291; danger of international 
diflBculties, 287 f.; constructive 
measures suggested, 289-293; 
need of pardoning powers, 292. 

Detroit, deportations, 243 n., 248, 
255 n., 288. 

Dicey, A. V., 5 n., 76 and n., 
183 n. 

Dickens, Charles, 140. 

Dictagraph, used to prosecute for 
conversations, 59 n. 

Disorderly conduct, pacifism pun- 
ished as, 74 and n., 102 n., 110 n. 
See Breach of the Peace. 

DisQUE, Colonel, 113, 163. 

District attorneys. United States. 
See Prosecuting officials. 

District Courts, United States, 
administration of Espionage 
Act, 46-87; juries in, 78-80. 

Doe, J. P., prosecution, 60, 67. 

Dorr War, 164. 

Draft. See Conscription. 

Dreyfus, Alfred, 115, 136. 

Due process of law, involves bal- 
ancing, 35, 38; in deportation 
proceedings, 232, 241, 242 »., 
254, 255, 280-285. 

DuGuiT, Leon, on the state, 109. 

Duma, 176. 

DuNiwAY, C. A., Freedom of the 
Press in Mass., 19 n., 23 n., 24 n. 

Eastman, Max, 79, 85 n., 86, 126. 

See Masses. 
Egypt, 108. 
Eighteenth Amendment. See 

Prohibition. 
Electoral College, 114. 
Ellenborough, Lord, 28, 68. 
Elliot's Debates, cited, 5 n., 19 n., 

20 n., 21 n., 211 n., 240 n. 
Emerson, 277, 367. 



416 



GENERAL INDEX 



Empey, Guy, 261. 

England. See Great Britain. 

Enlistment, voluntary, interfer- 
ence with, 41, 43, 53, 57, 169. 

Entinck, John, raid on, 298, 
304. 

Erskine, Thomas, 19, 23. 

EsMEiN, A., 175 n. 

Espionage Act, 40-160. 

Act of 1917: origin and text, 
40-43; a military statute, 48 and 
n., 50, 51, 73; construction gen- 
erally, 43, 44, 57, 58, 69, 216, 
218, 335, in Masses case, 46-56, 
in prosecutions, 56-66, by Su- 
preme Court, 1, 15-17, 57, 65, 
87-106, 265; false statements, 51, 

56, 57, 94-106, 134, 135, 218; 
insubordination and recruiting, 
57 ;f. 

Act of 1918: origin, 43-46; 
summarized, 44, 45; text and 
digest of cases, 395-398; con- 
struction generally, 51, 113 ff., 
by prosecuting attorneys, 74-76, 
by employers, 74, in Abrams 
case, 120-160, by Supreme Court, 
116, 141, 148-160; Constitution 
and government clauses, 114, 

128, 129; army and na\y clauses, 
114, 115; munitions clause, 127, 

129, 130, 137-144, 149-153; re- 
sistance to U. S., 127, 129, 137, 
141, 149, 153 n., 215, 216; op- 
posing cause of U. S., 114. 

Human machinery of Act, 66- 
87, public feeling, 70-73, prose- 
secuting officials, 73-76, juries, 
76-80, judges, 80-87; sentences, 
58-62, 87 and n., 147, 148, 159, 
220; constitutionality, 12 and n., 
15, 16, 32, 47, 48, '88, 89, 114- 
116, 128, 129, 154; relation to 
state war statutes, 110-113; use 
of Act against radicals, 77, 
81 f., 162, against actual incite- 
ment to violation of draft law, 

57, 88-90, after armistice, 113- 
116, 229, 261, 302, 335; com- 
parison, with Sedition Act of 
1798, 56, 128, with Civil War, 
41, 46, 116, 117, with Defense 
of the Realm Act, 118 and n.; 
inadequate and evil results of 
Act, 46, 100, 118, 119, 335. 336; 
eflfect in future wars, 46, 64, 



113-119; repeal essential, 93, 
159, 160. 

Conspiracy section, 43, 45, 
124; misprision section, 43, 45; 
search warrants, 43, 45, 302; 
postal powers, 43, 45, see Post- 
Office; non-sedition parts of 
Act, 6, 43; deportation, 2P n. 

Relation of Act to law of at- 
tempts and solicitation, 49, 51- 
53, 88, 89, 155; intention in 
prosecutions, 54-56, 63-68, 86; 
proved by utterances outside in- 
dictment,' 58, 67, 85 and n., 140- 
142, and before U. S. entered 
War, 67; in Abrams case, 
127 ;f., 139-145; truth usually 
no defense, 56, 115. 

Relation of Act to peace- 
time sedition statutes, 197, 216; 
to treason, 325-328. 

Effect on legislative exclusion, 
323-335 passim, 345, 354-356. 

Alphabetical index of cases, 
387-395. 

Evarts, W. M., 229, 359 n. 

Evidence, questions of, in war 
cases, utterances outside indict- 
ment, 58, 67, 68, 85 and n.; self- 
incrimination, 69; law and fact, 
101-106; Robins testimony in 
Abrams case, 132-137. 

Exile, as punishment for sedition, 
109, 110, 157, 176, 197, 198. See 
Deportations; Denaturaliza- 
tion. 

Explosions, 163-169 passim. 

Express, as substitute for mails, 
109 and n. 

Extradition, of political crim- 
inals, 191 and n., 286. 

Fact, questions of, 101-106. 

Federalist judges, 8, 9, 21, 22, 31, 
78, 80, 81. 

Federalist party, wrecked by Se- 
dition Act of 1798, 30, 116.' 

Ferrari, Robert, on political 
trials, 85 n., 136 n. 

Ferrer, 278, 279. 

Field, Stephen, Justice, 96 n., 
235. 

Fifth Amendment, in war, 83 
and n., 42 re., 299. See Due 
Process of Law. 

Finished Mystery, pamphlet, 101. 



GENERAL INDEX 



417 



First Amendmekt. See Speech, 
Freedom of. 

Fish, Hamilton, on intervention, 
160 n. 

Flag, United States, 185, 187; 
abuse of, 45, ITl, 185. 

Flag, red, 180-187. 

Fletcher, Henry J., on war pow- 
ers, 33 n. 

Flogging, in army, criticism of, 

27, 28, 68. 

Flynk, E. G., I. W. W., 189 n. 

" Force and Violence," legisla- 
tion punishing advocacy of, 139, 
140, 194; constitutionality, 198- 
207; wisdom, 207-228, 231; in 
deportation statute, 257-262. 

Ford, an I. W, W., 163. 

Foreign language press, in war, 
90, 94 f., lOo n., 110 n.; in peace, 
195, 199. 

Forty-eight, Committee of, 184, 
267. 

Four-minute men, 64, 74. 

Fourteenth Amendment, 35, 38, 
323-328. 

Fourth Amendment. See Search- 
es and Seizures. 

Fox, Charles James, 23, 174. 

Fox's Libel Act, 9, 23, 25, 27, 29, 
39, 69. 

France, threatened war of 1798, 
29; Rhine policy, 64; Restora- 
tion sedition laws, 175; attacks 
on, suppressed in U. S., 108; 
Dreyfus affair, 115, 136; 
teachers, 375. See French 
Revolution. 

Frank, Peter, citizen arrested for 
deportation, 252-254. 

Franklin, Benjamin, 18, 21. 

Freedom. See sub Assembly, 
Person, Press, Seas, Speech, 
etc. 

Freeman's Journal and Catholic 
Register, excluded from mails, 
108. 

French Revolution, 109, 221; 
French trials, 26; eifect on 
English sedition trials, 13, 27, 

28, 77, 87, 118, 157, 158, 175, 
263, 264; effect in U. S., 29, 162. 

Freund, Ernst, 92, 175 n., 206, 

207, 211 n., 263 n., 267. 
Frohwerk, prosecution, 15, 16 

and n., 88 n., 90. 



Fugitive slave law, 114, 209, 210. 
Fuller, M. W., Chief Justice, 277, 

283 passim. 
FuRNEAux, Philip, Letters to 

Blackstone, 31 n. 

Gaelic American, excluded from 
mails, 108. 

Galsworthy, John, 10. 

Garrison, W. L., 209, 210. 

Garvan, Assistant Attorney Gen- 
eral, 261, 262. 

Gaynor, Wm. J., on searches, 
304 ra. 

Geiger, Judge, 48 n. 

George III., sedition under, 312. 
See Great Britain. 

George, Lloyd, 117. 

German Opera, prohibited, 110 ra., 
183 n. 

Germany, treaty with, 2; opposi- 
tion to war with, 6, 40-119, 
317 f.; propaganda by, 42, 70; 
submarine warfare, 57, 60; in- 
vasion of Belgium, 63; spies, 6, 
exaggerated reports, 70-72; con- 
nection with Russian Revolu- 
tion, 132 and chapter III 
passim; laws against associa- 
tions, 263. See Pro-Germans. 

Gilbert, W. S., quoted by Judge 
Clayton, 134. 

GiLMAN, President, 372, 373. 

GiTLow, Benjamin, prosecution, 
188. 

Goethe, 52. 

Goldman, Emma, 13 n., 41 n., 47, 
56, 126, 177, 200, 256, 287. 

Goldstein, prosecution, 10 n., 60, 
61. 

GoMPERS, Samuel, 108. 

Graham Bill, 197, 198, 203, 268. 

Grant, U. S., 2. 

Gray, Horace, Justice, 234. 

Gray, John Chipman, on rights 
and interests, 36 n. 

Great Britain, sedition trials, 22, 
23, 26-29, 118, 146 n., 157, 175, 
210, 211, 216; informers and 
anti-sedition associations, 72; 
Defense of the Realm Act in 
World War, 42 and n., 58, 
118 n.; other wars, 104, 117; 
Combination Acts, 192; treason, 
201-203; Reform Bill, 260; laws 
against seditious associations, 



418 



GENERAL INDEX 



263, 264; expulsion of aliens, 
263 n.; spies, 269-271; Wilkes, 
295-299, 311-315; other Parlia- 
mentary cases, 344; effect of 
English law on Federalist 
judges, 8, 9, 21, 22; criticism of 
England suppressed under Es- 
pionage Act, 10, 60, 61, 108; 
British Secret Service and Lusk 
Committee, 306. 

Gregory, Thomas W., Attorney 
General, on war laws, 40, 43, 44, 
64, 65; on propaganda, 176; re- 
quests amendment of Espionage 
Act, 43, 44; on baseless spy ru- 
mors, 72; circulars to district 
attorneys, 74-76; on slacker 
round-up, 107, 108. See At- 
TORKEY General. 

Grenville, George, 296, 298, 311, 
313. 

Guests, prosecute host for sedi- 
tion, 59. 

Guilt by Association. See Asso- 
ciation. 

Gyori, Louis, philosophical an- 
archist deported, 280. 

Habeas corpus, right to, 3, 69, 95 
and n., 238, 239, 240, 253, 255. 
See CoLYER Case. 

Hale, Swinburne, 270 n. 

Halex-y, D., on American political 
parties, 363. 

Halifax, Lord, 296, 297, 302. 

Hamersley, Judge, 12. 

Hamilton, Alexander, 2, 15; defi- 
nition of free speech, 3 and n., 
4tc., 30 and n., 372; rejected 
for Espionage Act, 44. 

Hamilton, Andrew, 19, 23 n. See 
Zenger. 

Hand, Augustus, Judge, 86, 126. 

Hand, Learned, Judge, 15, 17, 125, 
128 n., 194, 324 n.; interpreta- 
tion of freedom of speech in 
3Iasses case, 46-56, 63, 69, 76 n., 
88, 89, 107, 174, 216. 

Hanson, Ole, 115 n., 193 n. 

Harper, Saml. N., 186 n. 

Harrison, Benjamin, 284. 

Hartford, deportations, 246. 

Hartford Convention, 97. 

Harvard, red flag, 187; dismissal 
of Loring, 209; Russian library, 
221; academic freedom, 368. 



Harvard Law Review, unsigned 
notes, 42 n., 51 n., 54 n., 67 n., 
76 n., 82 n., 83 «., 128 n., 150 n., 
156 n., 202 n., 2Un. 

Harvard Liberal Club, 194 n., 
226 n. 

Haywood, W. D., prosecution, 
85 n., 87 n., 163. 

Hazel, Judge, 167, 168 and n. 

Hearst, W. R., 62; newspapers 
in the war, 110 n. 

Henry, Patrick, 60, 205. 

HiGGiNs, Henry B., on concilia- 
tion courts, 192 n. 

Hobbes, Thomas, 13. 

Holmes, O. W., Justice, on free- 
dom of speech, 9, 15, 16, 22, 88- 
93, 94, 101, 120, 148 n., 148-159, 
188, 194, 197, 226; on socialism, 
82; on searches, 300; 32, 37, 63. 

Holt, Judge, 236, 237, 238. 

Holt, Lord, 211. 

Hough, Judge, 13 n., 5in., 55, 
108 re., 119. 

HoxiE, 267 n. 

Hughes, Charles E., 2, 189, 332, 
333, 336-339. 

Human machinery, for enforc- 
ing statutes: Espionage Act, 66- 
87; peace-time sedition laws, 
207-219; deportations, 231-240, 
291-293. 

Hunt, Governor, 190. 

Hunt, Leigh, prosecution, 27, 28, 
68. 

Hutchinson, Chief Justice, on 
freedom of speech, 23 n.; on 
witches, 356 n. 

Hyde, C. C, on Czecho-Slovaks, 
131 n. 

Hylan, Mayor, 110 n., 183 n., 
190, 191. 

Hymns, military imagery in, 140. 

Idaho, syndicalism law, 190. 

Ihering, von, on rights and in- 
terests, 35 n. 

Illegal Practices of the United 
States Department of Justice, 
pamphlet, 243 re., 270 n. 

Illinois, Alton riots, 3; Haymar- 
ket murders, 165; sedition stat- 
ute, 191. 

Immigration officials, hearings. 
See Deportations. 

Incitement. See Solicitation. 



GENERAL INDEX 



419 



Indecent pttblications. See Ob- 
scenity. 

India, discussion of, suppressed 
in U. S., 108; sedition in, 66, 
212, 241, 249. 

Industrial Workers of the 
World (I. W. W.), Bisbee de- 
portations, 45; Chicago trial, 
85 »., 87 re., 163; Sacramento 
trial, 87 n.; other federal prose- 
cutions, 77, 83; attitude toward 
war, 81, 162, 163; state war 
prosecutions, 110, 113; peace 
prosecutions, 189 w., 190-193; 
Centralia, 164, 212; economic 
causes, 193; injunction against, 
193; raids upon, 212, 242 n., 260, 
271; deportations, 242 n., 272- 
275; denaturalization, 272, 273; 
constructive measures sug- 
gested, 274, 275. 

Injunction, of libels, 8; against 
exclusion from mails, 47, 48; 
against coal strike, 82, 260. 

Intention, doctrine of construc- 
tive, 26, 28-30, 54-56, 67, 97, 
134-136; in Sedition Law of 
1798, 29; in Espionage Act, see 
same. 

Interests, principle of social and 
individual, 34-38, 170, 179, 180, 
284, 366 f. 

International, Communist, 269, 
260, 334, 360. 

Iowa, war sedition act, llln. 

Ireland, 186, 287; discussion of, 
in war, suppressed in U. S., 108, 
134, 154; suppression in, 212, 
264, 265; status under our 
deportation statute, 287, 288. 

Irish World, excluded from mails, 
108. 

Isaiah, prosecution for quoting, 
218. 

I. W. W. See Industrial Work- 
ers OF the World. 

Jefferson, Thomas, 17, 18, 21, 30, 
31, 56, 66, 67, 108, 161, 162, 217, 
227, 336 ; on revolution, 323, 372. 

Jeffreys, Judge, 213. 

Jenkins, cause of war, 114. 

Jesus, 362, 370; a crime to quote 
against war, 57, 61, 62; called 
anarchist, 146 and n.; Sermon 
on the Mount, 55, 119. 



Jews, 82, 83, 108, 126, 281, 284, 
289 re., 290. 

Johnson, Reverdy, Senator, on 
legislative exclusion, 347 n., 351 n, 

Johnson, Samuel, 10 ra., 118 n., 
172 n., 175 n., 289, 311. 

Ju Toy, deportation, 238 »., 256 
and n. 

Judges, effect of free speech 
clauses on, 5; Federalist, 8, 9, 
21, 22, 31, 78, 80, 81; function 
in libel and petition prosecu- 
tions, 19, 22-28, 29, 85, 86; in- 
terpretation of Espionage Act, 
in Masses case, 46-56; in other 
cases, 56-66, 81, 87, 91, 96, 100; 
under Sedition Act of 1798, 80, 
81; attitude toward radicals, 81- 
84, 146-148, 158, 159, 185; su- 
pervision by Department of 
Justice, 84, 85; sentences, 86, 87; 
Abrams case, 125 ff.; jesting 
with prisoners, 146-148; unfit- 
ness to determine bad intention 
and bad tendency, 213-219. 

Junius, 23, 312, 314. 

Jury, right to, grouped with free- 
dom of speech, 3, 4, 17; function 
in libel and sedition prosecu- 
tions, 19, 22-28, 29, 85, 86, 91-93, 
96-100; not a sure guarantee of 
^ free speech because of unfitness 
to determine bad tendency and 
bad intention, 24-28, 49, 52, 66- 
69, 76, 92, 93, 158, 213-219; and 
affected by popular hysteria, 
voluntary informers, and anti- 
sedition societies, 70-72; in Es- 
pionage Act trials, 73, 76-80, 91, 
98, 99, 103 f., 132-136 and f.; 
importance of methods of selec- 
tion, 26, 77-79; under Sedition 
Act of 1798, 78 and n.; age and 
occupation, 79, 80; divergent 
opinions of same writing, 26, 27; 
denied in post-oflBce exclusion 
proceedings, 158, 199; in de- 
portation proceedings, 158, 232- 
240. 

Justice, Department of, 202, 309; 
administration of Espionage 
Act, 73-76, 90, 112, 113, 124-126, 
229, 261, 262, 302; recommenda- 
tions for reduction of sentences, 
73, 87 n.; policy toward radicals, 
164, 195-197, 229; enforcement 



420 



GENERAL INDEX 



of state sedition laws, 229, 249; 
of deportation statute, 229, 
240 71., 241-252, 272-274, 293, 338, 
339; Illegal Activities pamphlet, 
243 n.; Silverthorne raid, 300, 
301; civil liability, 302; instruc- 
tioiis to agents, 243-247, 249, 
257; employment of spies, 268- 
272. 

Kansas, red flag law, 181'».; 
schools, 369. 

Kansas City Star, 118. 

Kenyon, Lord, 13, 58, 213. 

Kimball, Day, on Abrams case, 
156-158. 

Knitting, discouragement of, 
criminal, 57. 

Knox, Judge, 278 n. 

Knox, P. C., Senator, on legisla- 
tive exclusion, 347 n., 353. 

Kohler, on construction of funda- 
mental statutes, 31, 32 n. 

Kbopotkin, 276, 279, 287. 

Labor, Department of, exclusion 
and deportation of aliens, 232- 
293; no other Department has 
control of deportations, 242, 252. 
See Deportations; Wilson, W. 
B.; Post. 

Labor, Secretary of, 232-293 
passim; conclusiveness of de- 
cisions in deportation cases, 
232-240, 254-256, 291, 292. 

Labor unions, 11 n., 53, 192, 193, 
263, 267, 268, 273 and n., 274, 
308. See Strikes; Industrial 
Workers of the World. 

Lachowsky, H., prosecution, 124, 
126, 143 n., It4, 147 «., 148. See 
Abrams. 

La Follette, R. M., Senator, 36, 
95, 98. 

Langtry, Secretary, 261. 

Lansing, Robert, 60. 

Larkin, James, 287. 

Laski, F., 109 n. 

Laski, H. J., 42 n., 109 n., 375 n. 

Latzko, Men in War, excluded 
from the mails, 107. 

Leavitt, Judge, 324 n. 

Legislative debates, freedom of 
speech in, 3. 

Legislative exclusions, 311-364; 
Russia, 176; Wilkes, 311-315; 



Berger, 315-332; eligibility of 
next highest candidate, 319, 320; 
grounds of disqualification, 
321 f.; in U. S. Constitution, 
321, Fourteenth Amendment, 

323 f., 348, guilt of treason, 

324 jf., opposition to war as dis- 
qualification, 328 f.; N. Y. So- 
cialists, 332-364; original pro- 
ceedings, 332 f.; protests, 335 f.; 
Judiciary Committee sits. 339 jf.; 
power to suspend, 339, 340; 
power to disqualify on grounds 
not stated in the constitution, 
321, 322, 328-332, 340 f., 347 f., 
judicial precedents, 340-343 ; leg- 
islative precedents, 343-354, in 
England, 344, expulsions from 
Congress, 345 f., disqualifica- 
tions in Congress, 349 f., under 
Test Oath Act, 328, 330, 349- 
351, 353, Mormons, 348, 351 f., 
in New York, 354; disqualifica- 
tion for probability of breach 
of oath, 354 n.; charges against 
Socialists, 355; testimonj^ 356- 
361; the vote, 361; conclusions, 
362-364. 

Lenine, N., 107, 135, 147, 286, 311. 

Letters, prosecutions based on, 
57-60 passim, 118. 

Lever Act, 148 n.; coal-strike in- 
junction, 82, 153. 

Libel, criminal and seditious, 4 n., 
8, 9, 14, 15, 19-32, 52, 170-172; 
truth as defense, 4n., 19, 22-25, 
29, 30 n.; functions of judge and 
jury, same; injunction of, 8; 
civil actions, 12-18, 32; privilege 
and fair comment, 15, 32, 104; 
libel in war controversy, 110 n.; 
on the dead, 172. See Sedition; 
Fox. 

Liberator, 79 n. 

Liberty, of the person, press, 
speech, etc. See Person, Press, 
Speech, etc. 

Liberty Bonds, eifect of cam- 
paigns on discussion, 7, 74; in- 
terference with sales, 44, 45, 
53??., 57, 64, 65, 81, 107. 169; 
refusal to buy prosecuted, 59, 
60. 

License and liberty, theory of 
freedom of speech, 12-16, '210, 
211. 



GENERAL INDEX 



421 



Lincoln, Abraham, 46, 116, 117, 
224, 329; on revolution, 223. 

LiPMAN, S., prosecution, 123, 126, 
138, 140, 141, 142, 143 7^, 145, 
147, 147 n., 148. See Abrams. 

LipPMANN, Walter, 67 n. 

LiTTLEFiELD, Charles, Representa- 
tive, 347 n., 352 and n. 

Loans, as cause of war with Ger- 
many, 102-106. See Morgan; 
Liberty Bonds. 

Lopez, F. R., philosophical an- 
archist deported, 278-280, 286. 

LoRiMER, Wm., Senator, exclusion 
case, 339, ai3, 347. 

Love JOY, E. P., 3. 

Lowell, A. L., on academic free- 
dom, 368. 

Lowell, James Russell, 16, 97, 
104, 116, 202, 366, 372. 

Loyalists, British, 2, 302 and n. 

LoYD, W. H., 23 re. 

LlTDENDORFF, 6. 

LusK Committee, 203, 204, 270, 
302-310, 334, 337, 358, 361- 
364. 

Lyon, Matthew, expulsion case, 
329, 345. 

McKellar, Senator, 198. 
McKenna, Justice, 94-98, 148 w. 
McKiNLEY, William, 52, 165, 187, 

205, 230. 
McMaster, J. B., 19 re. 
Macaulay, T. B., 19 re., 66 and n., 

203, 250, 294. 
Madison, James, 15, 19-22, 211, 

240, 361. 
Magna Charta, abandoned in war, 

119. 
Maine, Sir Henry, 69. 
Mails. See Post-office, 
Maitland, F. W., 22. 
Mann, J. R., Representative, on 

Berger, 320, 324. 
Mansfield, Lord, 8, 23, 310. 
Marshall, John, 3, 22 re., 34 re., 

200, 201, 211 re., 265, 325. 
Marshals, United States, 78, 80. 
Martens, L. C. A. K., 287, 305- 

308. 
Martial law, for opponents of 

war, 33 n., 41, 42, 116, 117; for 

discussion in army, 50. 
Martin, Luther, 17. 
Marx, 221, 223, 279, 365 f. 



Maryland, demands federal free 
speech clause, 4, 19. 

Massachusetts, 283, 315; constitu- 
tion, free speech clause, 4 and 
re.; Blackstonian decision, 8; 
restriction of press by stamp 
tax, 19 re.; colonial sedition law, 
23 re.; libel statute, 24 re.; Rox- 
bury Riots, 182-186, 212; red 
flag law, 186, 187; anarchy act, 
189, 190, 204, 212, 269; Boston 
ordinance, 191 ; deportations, 
248 re., see Colyer case ; Secre- 
tary Langtry, 261; raids, 310, 
311. 

Masses, exclusion from mails, 9 n.) 
46-56, 107, 108 re., 118, 119, 125, 
154, 174, 175 re., 194, 205 re., 207, 
214, 216. See Eastman. 

Masters, Edgar L., 275. 

May, J. W., on intent, 150 re. 

May, T. E., on English sedition, 
22 re., 23 re., 28 re., 72 and re., 77, 
263 re., 264 re., 265 re., 269 re., 
271 n., 297 re.; on exclusion from 
Parliament, 312, 344 re., 345 re., 
356. 

May Day Riots. See Riots. 

Mayer, J. M., Judge, 13 re., 27«., 
40, 54 re., 79 re., 125. 

Mazzini, 286. 

Meehan, John, I. W. W., 276. 

Meetings. See Assembly. 

Merchant vessels, sinking of, 57, 
60. 

Merivale, on Tiberius, 268 re. 

Mexico, possible war with, 114, 
133; opposition in U. S., in 
1846, 16, 64, 104, 116, 330; possi- 
ble deportation of Americans, 
298. 

Mikado, quoted by Judge Clayton, 
134. 

Military Intelligence Police, 
123, 124, 145, 146, 159. 

Militia, compulsory training con- 
stitutional, 35; state and fed- 
eral control, 111 and re. 

Mill, John Stuart, 32, 50, 167, 
197, 205, 219 71., 365, 375. 

Miller, Justice, 16 re. 

Miller, S. L., Asst. U. S. At- 
torney, 126. 

Milligan, 33 and re., 42 re., 69 re., 
81 n., 96 re., 113, 116, 117 re., 325. 

Milton, John, 1, 32, 197, 375. 



422 



GENERAL INDEX 



Milwaukee Leader, 64; exclusion 
from mails, 107, 315-317, 323, 
331. 

Minnesota, safety commission, 33; 
war sedition act, 57, 77, 85 n., 
110-113, 162. 

Minorities, legal rights should be 
upheld, 2, 3, 156, 157, 294. 

Misdirection, unexcepted, 149 n. 

Mississippi, constitution, free 
speech clause, 4 n. 

Mob violence, 44, 45, 46, 212; in- 
citement to, 50, 260, 261. 

Montana, war sedition law, 44, 
113 n.; peace sedition law, 190, 
191. 

MooNEY, Thomas, 163. 

Moore, J. B., Digest of Interna- 
tional Law, cited, 160 «., 191 n., 
284 n., 288 n.; Digest of Interna- 
tional Arbitrations, 288 n. 

Morgan, J. P., 81 n., 102, 104. 

MoRLEY, John, 66, 117, 159 n., 212, 
241, 264, 265 n. 

Mormons, exclusion from Con- 
gress, 348, 351-353. 

Morton, Chief Justice, 165. 

Most, Johann, 205, 206. 

Mothers, discouragement of, in 
war, criminal, 68, 103. 

Moving pictures, censorship and 
prosecutions, 10, 43, 60, 61 and 
n., 179, 203 n. 

Muir, prosecution, 28, 146 n. 

Municipal corporations, censor- 
ship of press, 110 n.; prohibition 
of German opera, 110 w., 183 w.; 
of meetings, 182-186, 190, 191. 

Munition factories, limiting war- 
time discussion, 7, 58. 

Munitions, curtailment of produc- 
tion, 45, 65, 127-153 passim, 
152 n., 163; see Espionage Act; 
criticism of defective munitions 
prosecuted, 62. 

Myzrson, a., 289, 290. 

Napoleon, propaganda in Eng- 
land, 27. 

Nation, excluded from mails, 107; 
editorials, 132 n., 190 w., 193 «., 
338. 

National Founders' Association, 
240 n. 

National guard. See Militia. 



National Popular Government 
League, 243 n. 

National Security League, 338. 

Naturalization, compulsory un- 
desirable, 235, 236; forbidden to 
anarchists, 278, 280; limits on 
power, 281. See Denaturaliza- 
tion. 

Navy, abuse of, crime, 45, 114, 115. 
See Sims. 

Nearing, Scott, prosecution, 27, 
53 n., 55 n., 85 n., 125, 308, 356. 

Negroes, freedom of speech and, 
175, 184, 195, 203, 204. 

Nelles, Walter, Espionage Act 
cases, 82 n., 83 n., 86 m., 110 ». 

New Hampshire, constitution, free 
speech clause, 4 n. 

New Jersey, war sedition law, 
llln., 112 n.; Plainfield regula- 
tion of meetings, 184; anarchy 
act, 189 and n., 190, 204; Berger, 
321. 

Neio Republic, editorials, 116 n., 
132 n., 272 n., 278 n., 280 n., 338. 

New York: 

State. Constitution on free 
speech, 4 n., 21 n., 24 n., 30 n., 
374; demands U. S. clause, 4; 
libel statute, 24 n.; Croswell 
case, 30 and n.; red flag law, 
180; criminal anarchy statute, 
187, 188, 216; Loyalist" investiga- 
tion, 302 and n.; law of searches 
and seizures, 303-310. See Lusk 
Committee ; Legislative Ex- 
clusions (N. Y. Socialists). 

City. Slacker round-up, 107, 
108; federal juries, 79; radical 
meetings, 177-179; Hylan ordi- 
nances, 110 n., 183 71., 190, 191; 
Socialist aldermen, 338; school 
situation, 365 ff. 

New York Bar Association, of 
City, 189 «., 338-340. 

Neic York Call, excluded from 
mails, 115, 229. 

Neio York Times, Current History 
of the War, 130 n.; editorial on 
Abrams case, 146 n.; article on 
anarchistic press, 222; editorial 
on I. W. W., 272 n.; on N. Y. 
Socialist assemblymen, 362. 

New York Tribune, on Socialist 
assemblymen, 338. 



GENERAL INDEX 



423 



New York World, telegrams cen- 
sored, 109 n. 

Newberry, T. H., Senator, 337, 
338. 

Newspapers, restraint in war, 10, 
46-59, 90, 94 ;f., 106-109, 110 n., 
116; effect of exclusion from 
mail, 107, 199, 234; eflfect of 
publication of facts of sedition 
trials, 119, 222; revolutionary- 
press, 164, 195, 213, 222; con- 
spiracy to compel handling of 
distasteful newspaper, 110 «./ 
opposition to sedition bills, 198, 
838, See Foreign-language 
PRESS; Milwaukee Leader. 

Newton, Attorney General of N. 
Y., 309, 334, 337, 355, 357, 361, 

Non-Partisan League, 77, 78, 81, 
83, 85 71., 110-113, 162, 267, 369, 

North Carolina, discussion of 
federal free speech clause, 5 n. 

Notice, constructive, 103, 104. 

Nude and the Prudes, 188. 

Nuisances, relation to freedom of 
speech, 52, 171, 205. 

Gates, Titus, 357. 

O'Brian, J. L., 40, 41, 44 n., 46 n., 

70-77 fassim, 107, 108, 112, 113, 

231 n., 319 n. 
O'Brien, Judge, 343. 
Obscenity, 10, 14, 15, 52, 170-172, 

188, 214, 234, 311. 
Officials. See United States 

Officials. 
O'Hare, Kate R., prosecution, 83, 

162. 
Official Record of the Rebellion, 

cited, 117 n. 
Opera. See German Opera. 
Opper, cartoonist, 52. 
Order, social interest in, limits 

freedom of speech, 34, 170, 179, 

284, 366, 368. 
Ore, Samuel, N. Y, Socialist as- 
semblyman, 333, 356. 
Otis, James, 210, 299, 311. 
Overman, Senator, 181, 182; Bill, 

197; Committee, 134, 135, 197. 

Pacifists, 2, 26, 37, 46, 64, 68, 70, 
73, 102 f., 106, 224, 296, 317, 
329; expulsion from college, 
110 ». 



Palestine, 108. 

Palfrey, J. G., on Salem witches, 
357 w. 

Palmer, A. Mitchell, U. S. At- 
torney General, enforcement of 
Espionage Act after armistice, 
115, 229, 302; house bombed, 
163, 197; recommends federal 
sedition bill, 167, 195-198, 203, 
207 f., 335; on federal con- 
spiracy statute, 167-169; does 
not fear revolution, 196, 251; 
recommends and enforces state 
sedition laws, 195, 229, 249; en- 
forces deportation statute, 196, 
229, 230, 241-252, 257, 274, 283, 
293, 302; controversy with Post, 
250-252; on spies, 27*0-272; on in- 
dependent labor unions, 273 n. 

Palmer, Joseph, 172. 

Palmer, T. Fyshe, prosecution, 28. 

Pardons, in Espionage Act cases, 
61, 62 n., 73; impossible in de- 
portation cases, 292. See Com- 
mutations; Amnesty. 

Parker, Carleton, 162, 163. 

Parliament. See Great Britain. 

Parnell, C. S., 264. 

Parties, in America, 267, 363. 

Peck, Jared, 65 n. 

Pennsylvania, constitution, free 
speech clause, 4 and n., 18, 24 n.; 
discussion of federal free speech 
clause, 19 n. 

Pennsylvania and the Federal Con- 
stitution, 19 n., 23 n. 

Persecution, Justice Holmes on, 
155, 156. See Religion. 

Person, liberty of, 17; searches of, 
242 n., 301. See Arrests. 

Petition, right of, 6, 7 n.j Baltzer 
case, 64, 65, 116. 

Philadelphia Tageblatt, 94, 101. 
See Schaefer. 

Phillips, prosecution, 13 n., 41 »,, 
79 n., 126. 

Phillips, Wendell, 209. 

Pierce, prosecution, 13 n., 94 and 
n., 101-106, 134, 135 n., 285 n. 

"Pillars of Fire," 184. 

Pinckney, Charles, 3, 21 n. 

Pitney, Justice, 101-104. 

Place, Francis, 260, 271 n. 

Platforms, party, not be taken too 
seriously, 267. 



424j 



GENERAL INDEX 



Political discussion, doctrine that 
it should be confined to the leg- 
islature, 27, 28; punishment of 
criticism of government, chap- 
ter I.; forbidden to superin- 
tendent of schools, 11 n.; con- 
ventions prohibited, 11 n.; cam- 
paign expenses limited, 11 «.; in 
war, 48, 49, 62, 63. See Sedi- 
tion. 

Political trials, 85 n., 94, 1 16, 132- 
137. See Sedition. 

Pollard, E. A., on confederate 
censorship, 117 «, 

Post, Louis F., Assistant Secretary 
of Labor, 233 n., 239 n., 243, 
272 n., 291 and n., 292; con- 
troversy with Palmer, 250- 
252. 

Post-office, subject to First 
Amendment, 34, 108, 109, 218; 
conclusiveness of administrative 
decisions, 45, 54, 106-109, 199, 
233, 234; powers under Es- 
pionage Act, 6, 12 n., 43, 45, 46- 
5Q, 106-109, 115, 229, 335; in 
peace-time sedition bills, 197- 
199; control of express and tele- 
graph, 109 n.; no jury, 158, 199; 
powers to exclude matter incit- 
ing to murder, etc., 214, 229; 
opening mail, 241 n. 

Pound, Roscoe, on freedom of 
speech, 8 n.; on rights and in- 
terests, 35 n. 

Preis, Engelbert, deportation, 256- 
261, 268. 

President, 252; powers under 
Alien Law of 1798, 29; criticism 
of, punished under Sedition Act 
of 1798, 29, 204, under Espionage 
Act, 129, 138; protection of life, 
see United States Officials; 
threats against, 202, 207, 214, 
215. See Jefferson; Lincoln; 
Wilson. 

President's Mediation Commis- 
sion, report of, 113 n., 163, 
272 n., 292. 

Press, jfreedom of, 5, 17, 18, 21. 
See Censorship; Speech, free- 
dom of. 

Previous restraint, 8-32; defini- 
tion of freedom of speech. See 
Speech, freedom of. 



Price We Pay, pamphlet, 101-106. 

See Pierce. 
Primaries, political, 11 n. 
Prober, prosecution, 144. See 

Abrams. 
Procedural safeguards. See 

Speech, freedom of. 
Proces de tendance, 175 and n. 
Profanity, 170 f. 
Profiteers, discussion of criminal, 

50, 58, 59, 68, 95, 102, 103, 119, 

225; possible raids on, 308. 
Pro-Germans, 2, 59 n., 64, 70 

andn., 73, 94 ;f., 107, 194, 224, 

296. 
Prohibition, 66 n., 114, 209. 
Property, judicial protection, 106. 
Prosecuting attorneys, eff"ect of 

free speech clause on, 5; in the 

war with Germany, 73-76; under 

Sedition Act of 1798, 78; in 

Abrams case, 126, 144, 145, 
Proudhon, 221. 
Public, excluded from the mails, 

107. 
Public Information, Committee 

ON, 108, 132. 
Pulling, Defense of the Realm 

Manual, 42 n. 

Quakers, 197, 277. 
Quebec, address to people of, 17, 
170. 

Radicals, freedom of speech for, 
1, 2, 52; duty of restraint, 187; 
mob violence against, 44, 45, 46; 
under Espionage Act, 77, 81 f., 
162; on juries, 78-80; attitude of 
judges toward, 81-84, 85 n.; in 
Abrams case, 120-160 passim; 
prevalent after the War, 161, 
162; relation to the criminal law 
in peace, chapter IV., 161-228 
passim; see Sedition and suc- 
ceeding headings; deportation of, 
229-293; exclusion from legisla- 
tures, 329, 332 /f. 

Rai, La j pat, book on India ex- 
cluded from mails, 108. 

Raids, on Communists, 230. 241- 
254, 292, 293; on I. W. W., 212, 
242 n., 260, 274; time of Wilkes, 
296-299; in war, 115, 229, 302; 
by Lusk Committee, 302-310; in 



GENERAL INDEX 



425 



Massachusetts, 310, 311. See 
Searches and Seizures. 

Rand School, 204, 257 n., 308-310, 
356, 361. 

Randolph, John, 23. 

Ray, Judge, 13 n., 214, 

Reading, Lord, 325. 

Recht, Charles, 272 «., 275 n., 
278 n. 

Red Cross, criticism of, punished, 
57; refusal of contributions, 
punished, 109, 110. 

Red flag laws, 180-187. 

Referendum, before war, discus- 
sion criminal, 57, 64, 65. 

Religion, toleration, 2, 3, 172, 176, 
177, 196, 197, 276, 277, 370; Vir- 
ginia statute, see Virginia; fed- 
eral control prohibited, 5, 170; 
Christianity called inconsistent 
with war, 6, 57, 61, 62; religious 
meetings, 183, 184; Catholic As- 
sociation, in Ireland, 264. See 
Mormons. 

Representative government, right 
of, 17, 296. See Legislative ex- 
clusions. 

Review (now, Weekly Revieto), on 
Abrams case, 152 n.; on Social- 
ist assemblymen, 338; on Lusk 
bills, 362 «. 

Revolution, 97, 139-142, 164-169, 
173-179, 199-201, 205-207, 212, 
219, 257-262. See Sedition Bills; 
Palmer; Russia; American and 
French Revolution. 

Rhode Island, demands federal 
free speech clause, 4; soul lib- 
erty, 177, 276, 283; Berger, 321; 
property qualification, 372. 

Rhodes, J. F., 116 n., 117 »., 177 «., 
290 n., 330 n. 

Rights, and interests, 34-38, 
366 f. 

Riots, 164, 177, 178, 182-186, 203, 
212. 

Roberts, Brigham H., exclusion 
case, 345 n., 347 «., 350 n., 352 
and n. 

Robins, Raymond, 132-137, 181 n. 

Rodenberg, Representative, on 
Berger case, 331. 

Rockefeller, John D., 146. 

Rogers, H. W., Judge, 54 n., 56 
and n., 108 n., 278-280. 



Rolland, Remain, 367. 

Roman Catholics, abuse of, 184; 
legislation against, 264, 265, 281, 
283. 

Roosevelt, Theodore, 316, 325; 
(the younger), 361. 

Root, Elihu, 86, 355, 359. 

Root, Erastus, 21 n. 

RosANSKY, H., prosecution, 123, 
127, 144, 147 n., 148. See 
Abrams. 

Rousseau, J. J., 52. 

Roxbury Riot, 182-186, 212. 

Rugg, 186 n. 

Russell, Bertrand, prosecution, 
242 n., 59 and n., 295; Proposed 
Roads to Freedom, 222, 223, 276, 
284. 

Russell, Lord John, 227. 

Russell, G. W. E., 227 ». 

Russell, Pastor, sect, prosecu- 
tions, 83 n., 101. 

Russia, 10, 290; Russians in U. S., 
82, 120-160 passim, 230, 235, 256; 
Czarist policy toward discussion, 
176, 178, 191, 211 and n., 269, 
294 n.; eflFect of Russian Revolu- 
tion in U. S., 26, 58, 81, 82, 86, 
95, 120-160 passim, 162, 178, 196, 
289, 293, 334, 360 f., 371; truth 
needed, 158; Harvard library on 
Revolution, 221; documents cen- 
sored in U. S., 107, 221, 311; 
German participation, 132 and 
n., 135, 147; Soviet Government 
Bureau in N. Y., 287, 305-308; 
American intervention, 94, 129- 
132; criminality of opposition, 
130, 137 f., 160; questionable ef- 
fect of our deportations policy 
upon Russia, 286, 287. 

Russian-American Relations, cited, 
131 ra. 

Rutherford, Livingston, John 
Peter Zenger, 23 n. 

Ryan, J. M., Asst. U. S. Attorney, 
126, 145. 

Sabotage, 163; Federal statute, 
152 n., 163; state statutes, 163, 
274, 276; advocacy of, 190-194; 
deportations, 231 n., 272-275. 

Salvation Army, rioting against, 
183 and n. 

Sanford, Chancellor, 342, 354. 



426 



GENERAL INDEX 



ScANDELLA, American deported 
from Venezuela, 288 n. 

ScHAEFER, Tageblatt prosecution, 
85, 87, 94-101, 106, 207, 216, 218, 
265. 

ScHENCK, prosecution, 9 n., 16 n., 
88-93, 98, 99, 102, 155, 178, 179, 
191, 192, 285. 

ScHOFiELD, Henry, Freedom of the 
Press in the United States, 4 n., 
8n., 20 n., 21, 24 n., 30 and n., 
31 n., 56. 

Schools, political speeches by su- 
perintendent, 11 n.; freedom for 
teachers, 365-376. 

Schwartz, prosecution, 124, 125, 
126, 146. See Abrams. 

Science, promoted by freedom of 
speech, 17, 31, 32, 170, 370, 374. 

Scotland, sedition trials in, 28. 

Scott, Austin W., on atheism, 
172 n. 

ScEUTTON, Lord Justice, 119. 

Searches and seizures, warrants 
authorized by Espionage Act, 43, 
45, 302; raids in the war, 115, 
229, 302; Russia, 176; impor- 
tance of warrants, 140, 159; in 
deportation proceedin2;s, 241 and 
n., 242 n., 244-247, 302; at time 
of Wilkes, 295-298; Supreme 
Court decisions on Fourth 
Amendment, 299-301; conse- 
quences of illegality, 300-302; 
when legal, 242 n., 301, 310 ?i.; 
Lusk Committee raids, 302-310; 
N. Y. law, 303-310; Massachu- 
setts raids, 310, 311. 

Sears, Clara E., 172 ». 

Seas, Freedom of the, 17. 

Seattle Union-Record, raided, 115, 
229, 302. 

Sedition, common law of, and free 
speech, 8, 9, 11, 14, 19-32, 170; 
not federal common law crime; 
British trials, 22, 23, 26-29, 118, 
146 n., 157, 175, 296 f.; colonial 
trials, 19, 22, 23; societies to 
suppress, 71, 72, 357; in war, see 
War, Espionage Act; punish- 
ment in peace, chapter IV., 161- 
228; normal criminal law suffi- 
cient, 161-169; criminal law of 
obscenity, breaches of peace, etc., 
distinguished, 169-173; criminal 



law of violence distinguished, 
173-180, 196; suppression of agi- 
tation by law unwise, 219/^".; 
distinguished from treason, 325- 
328. See Spies. 

Sedition Act of 1798, 1, 17, 25, 
65 «., 109, 116, 157, 162, 194, 199, 
208, 223, 229, 329, 345; summary 
of text, 29, 30; constitutionality, 
20-22 and nn., 30, 200, 204; com- 
parison with Espionage Act, 56, 
128; juries, 78 and «.; judges, 
80, 81. 

Sedition Act of 1918, 44. See 
Espionage Act. 

Sedition bills, federal, 81, 140, 
194-228, 229, 230, 231; summary, 
194-199; constitutionality, af- 
firmative federal power, 199- 
201, treason clause, 201-203, first 
amendment, 203-207 ; wisdom, 
207-228, 268. 

Sedition statutes of states, in 
war, 57, 74 «., 110-113, 163; in 
peace, 163, 169, 173-194, 204, 212, 
216, 224, 246; red flag laws, 180- 
187; anarchy syndicalism, and 
sedition, 187-194, 261, 265, 268; 
constitutionality, 191-194; rec- 
ommended by Palmer, 195; en- 
forced by Palmer, 229, 249. 

Self-incrimination, rule against, 
69, 303 and n., 307. 

Sentenced to Twenty Years Prison, 
145 n. 

Sentences, English and Scotch se- 
dition trials, 28 and n., 87 n.; De- 
fense of the Realm Act trials, 
118 n.; India, 159 ra.; Espionage 
Act trials, 58-62, 87 and n., 147, 
148, 159, 160, 220; long sentences 
as cruel and unusual punish- 
ment, 148 n. 

September Morn, suppression of, 
175. 

Sermon on the Mount, and war, 
55, 119. 

Service-letter statutes, 3 n. 

Servitude, involuntary, sometimes 
constitutional, 7, 35, 36. 

Seward, W. F., arbitrary arrests, 
116; on intervention, 160 «, 

Sex, discussion, 171, 172. 

Shakespeare, William, 14, 55; 
censored, 175, 214. 



GENERAL INDEX 



427 



Shaw, Bernard, 32; censored, 175, 
283. 

Shaw, Lord, 42 n. 

Shay's Rebellion, 164. 

Shelley, 172. 

Sherman Anti-trust Law, 53 n., 
106. 

Shiplacoff, a., prosecution, 125. 

Shipman, Clare, 190 ». 

Ships, discussion of sinking of, 57, 
60; parables of, 276, 286. 

Shipyards, limiting war-time dis- 
cussion, 7, 58. 

SiDis, W., 186 n. 

Sims, Admiral, 64. 

SissoN, Edgar, Russian documents, 
132 and n.; in Abrams case, 
133. 

Sisters, discouragement of, in war, 
criminal, 103. 

Slander, no previous restraint pos- 
sible, 14; not immune, 15. See 
Libel. 

Smith, Alfred, Governor, 362 and 
n. 

Smith, F, E. (now Lord Birken- 
head), criticism of, excluded 
from mails, 108. 

Smith, Jeremiah, on intent, 149 71., 
150 ». 

Smith and Wesson Co., 153. 

Smoot, Reed, Senator, exclusion 
case, 347 n., 352, 353. 

Socialist Review, 319 n., 331 n. 

Socialists, 2, 10, 27, 260; need for 
judicial comprehension, 82-84, 
86; in the War, 81, 83, 162; St. 
Louis Platform, 162, 315, 316, 
334; peace-time prosecutions, 
188, 210, 216, 224; secession of 
left-wing, 256, 262; exclusion as 
a party from legislature, 306, 
329-338, 355-364; in schools, 
365 f.; in Germany, 262. See 
Debs; Pierce; Stokes; Syra- 
cuse; Berger; Rand School; 
Lipman; Legislative exclusion; 
Communists. 

Societies, to suppress sedition, 71, 
72. 

Socrates, 367, 370. 

Solicitation, criminal, relation to 
freedom of speech, 25, 165, 166, 
173, and to Espionage Act, 49, 



51-53, 88, 89, 155; to non-crim- 
inal interference with the gov- 
ernment's war activities, 53, 169; 
in federal crimes, 166 and n., 
201. 

Solomon, Charles, N. Y. Socialist 
assemblyman, 333, 356, 357. 

South Carolina, constitution, free 
speech clause, 4 n. 

Soviet Government. See Russia. 

Speech, freedom of. 

Constitutions : guaranty in U. 
S. Constitution, 3-5, 18, 200, de- 
manded by states, 3, 4, 19, 166; 
in Congressional debates, 3; in 
state constitutions, 3 and n., 4 
and n., 17, 18, 21 «,, 30 n., 374; 
exception of " abuse " implied if 
not expressed, 4 n.; clauses a 
guide to interpretation of con- 
stitutional statutes, 5, 6, 46, 48, 
193, 194, 207; and also invalidate 
statutes, 3, 4, 11 and n., 16, 
llln., 156, 192 n. 

Meaning: 1-39, 155-158, 366- 
372; subject to limits, 2, 7; nec- 
essarily extends to unpopular 
persons and causes, 3, 156, 157, 
294, 366; Blackstonian censorship 
view, 8-12, 19, 21-23, 31, 32, 38, 
108, 199; liberty and license view, 
12-16, 210, 211, 368; history of 
principle, 17-32; inconsistent 
with common law of sedition, 14, 
22-24, 170; social and political 
function, 34-36; conclusions on 
meaning, 34-39, 156 f., 368 f.; 
view of Judge Hand, 50, 51; of 
Justice Holmes, 88, 155, 156; an 
issue between two tests of crim- 
inality, danger v. bad tendency, 
24-31, 37-39, 49-52, 154-159, 173- 
180, 213-219, and elsewhere; not 
secured by juries, 24-28, see 
Jury trial; meaning not fixed in 
1791, 14, 32, 35, 36; does not ex- 
clude intemperate and foolish 
discussion, 48, 83, 114, UO n., 
173, 206, 219, 220; applies to po- 
litical research, 370, 371; but not 
limited to political discussion, 
156, 170; does not depend on 
merits of existing government, 
210; suppression ineffectual, 118, 
119, 219, 220, 226, 227. 



428 



GENERAL INDEX 



Procedural safeguards : 39, 49, 
66-69, 92, 93; Fox's Libel Act, 
etc., 24, 39, 69; precise offense 
must be specified, 49, 92, 93; ob- 
jective test of criminality of 
words, 49-51, 54 /f., 216 f.; ex- 
clusion of psychological ques- 
tions and disputes of opinion, 
52, 66-69, 73, 103-106; judicial 
guidance of jury, 85, 86, 94-100; 
evils of bad intention as test of 
guilt, 63-68, 86, see Intention; 
culling sentences, 100, 102, 220; 
right to counsel, 236 /f., 247 f.; 
narrow range of administrative 
power in criminal law, 75. See 
Human machinery. 

Relation to other branches of 
the laxo and concrete applica- 
tions: libel, see same; nuisance, 
62, 171, 205; breaches of the 
peace, 24, 25, 74 and n., 102 n., 
110 n., Ill, 171, 172, 205, 208; 
war, 6, 7 and n., 25, 26, 32-38, 
46-56, 63-66, 88-90, 96, 104-106, 
176, 179, 369 f.; obscenity, blas- 
phemy, etc., 169-173, and see 
same; peace-time sedition laws, 
173-180, 191-194, 199-228; depor- 
tations, 280-291; legislative ex- 
clusion, 328-332, 362-364; schools, 
368-376. See Attempt; Solici- 
tation; Espionage Act; Post- 
office; Assembly. 

Summary of recent events in 
U. S., 296, 336-339. 

Spencer, Herbert, 226, 276. 

Spies, German, 6, 70-72; opponents 
of war as, 41, 42; government 
spies and informers 59, 71, 72, 
227, 268-272, 302, 357. 

Spies, August, anarchist, 165, 205, 
206. 

Spirit of '76, moving picture case, 
10, 38 n., 43, 60, 61. 

Stamp tax, restraint of press by, 
19 n., 32. 

Stanchfield, J. B., on guilt by 
association, 360. 

Stanton, E. M., arbitrary ar- 
rests, 116. 

Star Chamber, 32, 232, 238. 

S tar-Spangled Banner, alleged 
prosecutions for not standing up, 
102 and n., 103. 



State Sedition Laws, in war and 
peace. See Sedition Statutes 

OF STATES. 

State war cases, miscellaneous, 
110 n. 

Stead, W. T., " The Maiden Trib- 
ute," 171. 

Steimer, Molly, prosecution, 123, 
126, 143 and n., 144, 145, 147 n., 
148. See Abrams. 

Stephen, James Fitzjames, 13, 
20 r?., 23 n., 24, 26 n., 29 n., 56, 
201 7!., 263 n. - 

Sterling Bill, 197, 207. 

Stevenson, J. A., 269 tc. 

Stevenson, R. L., on Braxfield, 
146 n. 

Stirner, 221. 

Stokes, Rose Pastor, prosecution, 
13 n., 28 n., 58, 59, 67, 87 n., 92, 
118, 119, 225. 

Stone, F. D., 19 n. 

Storey, Moorfield, on intervention, 
160 n. 

Story, Joseph, 8 n., 341, 345 n. 

Street meetings. See Assembly. 

Strikes, 53, 164, 218, 220; under 
Espionage Act of 1918, 74, 269, 
273, 274; coal strike, 82, 260; 
advocacy of general strike, 122, 
125, 139, 140, 149-153, 163, 188, 
216, 257-261, 271. See Labor 
Unions. 

Strong, A. L., 115 n. 

Submarine warfare, discussion of 
criminal, 57, 60. 

Suoarman, prosecution, 88 n., 89, 
90. 

SuHR, an I. W. W., 163. 

Sumner, Charles, 210, 330. 

Sumner, William G., 97, 362, 

Sunday, Rev. \Vm., 260. 

Supreme Court of the United 
States, Espionage Act cases, 15, 
16, 87-106, 116, 120-160 passim, 
178, 191, 207, 285; other free 
speech cases, 9, 12; on conscrip- 
tion, 7, 35, 40, 57; on postal 
power, 108; protection of lives of 
judges, 197, 200, 206; on power 
over aliens, 230 ff.; on anarchist 
exclusions, 275 f.; on guilt by 
association, 265; on searches and 
seizures, 299-301, 335; on federal 
peace-time sedition bill, 207. 



GENERAL INDEX 



429 



Sweden, free speech in, 286. 
Sweet, Thaddeus C, N. Y. 

Speaker, 333-339, 857, 361 f. 
Sweethearts, discouragement of, 

in war criminal, 58, 103. 
Switzerland, free speech in, 286. 
Syndicalism, statutes against, 163, 

190-194, 197, 212, 265. 
Syracuse Socialists, prosecution, 

115. 

Tacitus, quoted, 1 18 n. 

Tageblatt, Philadelphia. See 
Schaefeh. 

Taney, Chief Justice, 84 n.; 
against lawlessness in war, 81 n. 

Tarde, 168. 

Taxation, 106, 233; restraint of 
free speech by, 19 n., 32, 282; 
discussion of war taxation sup- 
pressed, 57, 64, 65, 95, 107. 

Telegraph, censorship of, 109 n. 

Tendency, bad, as test of crimi- 
nality of words, fatal to free- 
dom of speech, see Speech, 
freedom of; social and economic 
tendency unsuitable for decision 
by judges and juries, 49, 52, 68, 
69, 104, 132-136, 158. 

Test oath, restricted by U. S. 
Constitution, 3; in R. I., 77; in 
N. Y., 333, 342, 343, 354 n. 

Test Oath Act, 828, 330, 849-351, 
353. 

Texas, war sedition law, 111 n. 

Thaw, H. K., trial, 136 n., 168. 

Thayer, J. B., 6 n. 

Thayer, W. R., 203. 

Theater, shouting fire in, 16; cen- 
sorship of, 172, 175. 

Third Amendment, 33. 

Thirteenth Amendment, 7, 35, 
36. 

Thomas, A. V., 218 n. 

Threats. See President. 

Tiberius, Emperor, censorship, 
118 n., 268. 

Tighe, Ambrose, on war powers, 
33 Ji., 117 n. 

Tildsley, John L., 365 ff. 

Tobacco, 209. 

Toledo, 191. 

Tolstoy, 276, 279, 294 n. 

Torts, outside free speech clauses, 
14, 15. See Libel, 



Townley, prosecution, 78 n., 85 n.. 
Ill and n. 

Tiuvchtenberg, a., 257 n. 

Trade unions. See Labor unions. 

Trading with the Enemy Act, 
108 n., 195. 

Training camps, limiting war- 
time discussion, 7, 57, 119; sani- 
tary conditions, 64. 

Treason, 97; le\7ing war, 166, 201, 
265; aid and comfort to ene- 
mies, 148 n., 202, 324-328; in 
war with Germany, 41 and n., 
60, 74, 91, 825 n.; against U. S., 
states cannot prosecute. 111; ef- 
fect of clause on federal sedi- 
tion statutes, 201-203, 218; Ber- 
ger and relation of treason to 
Espionage Act, 325-328. 

Treaties, 36, 233; with Germany, 
1, 119; secret, 36, 37 and n. 

Trevelyan, G. O., 295, 812. 

Trotsky, Leon, 135, 144, 147, 811. 

Trumbull, Lyman, Senator, on ex- 
pulsion, 346, 347. 

Truth, social interest in, 34-89, 
155-160, 176, 368 f.; importance 
in war, 36, 37, 46, 63, 65, 66, 96; 
not concerned in mere advocacy 
of violence and lawlessness, 49, 
50, 63, 173, 204; not a defense 
under Espionage Act, except 
false statements clause, 56, 115; 
relation to criminal law of ob- 
scenity, profanity, etc., 169-173. 
See Libel. 

Tucker, St. George, 8 n. 

Tucker, St. John, 101. 

TuNNEY, T. J., Inspector, 123, 
169 n., 181 and n., 182. 

Turner, John, anarchist ex- 
cluded, 275-283 passim. 

Tyler, Moses C, 276 n. 

Under-cover informants, 269-272. 

United States, inciting resistance 
to, opposing cause, see Es- 
pionage Act; division of state 
and federal jurisdiction over 
crimes, 113 f., 171; political par- 
ties, see Parties; absence of 
intellectual divergencies, 289, 
863. 

United States Constitution, ab- 
sence of free speech clause and 



430 



GENERAL INDEX 



ratification, 3, 4, 156; affirmative 
power over speech and sedition, 
3, 34 and n., 199-201; abuse of, 
crime, 45, 114. See various top- 
ics, e.g.. Speech, freedom of; 
Treason; Deportatioks; Bills 
OF rights; also the various 
amendments by number. 

United States courts, no common 
law crimes, 22. See Supreme 
Court; District courts; Judges; 
Federalist judges. 

United States officials, protec- 
tion of, from violence, 163-169, 
196-207, 213-215, 251. See Presi- 
dent; Prosecuting officials; 
Justice, department of. 

United States statutes, adequacy 
against utterances in war, 40-42, 
46, 50; against revolution and 
attacks on ofiicials, 165-169, 194, 
196; accessories, 52 and n., 53, 
166 n.; attempts and incitement, 
166 and n.; judicial code, 269, 
149 n.; Explosives Act, 169. 

UntermeyeRj Samuel, on Rand 
School, 309, 310. 

Vallandigham, 97, 117 and n., 
325, 330. 

Vance, W. R., on freedom of 
speech, 22 n., 76 n. 

Van Valkenburgh, Judge, 13n., 
28 n., 58, 59, 87, 225. 

Veblen, Thorstein, book on Ger- 
many excluded from mails, 
108. 

Venezuela, deportation of Amer- 
ican, 288 n. 

Vermont, constitution, free speech 
clause, 4 n. 

Vessels, merchant, sinking of, 57, 
60. See Ships. 

Violence, draft riots, 40, 50; mobs 
in war, 44-46; law against, 165- 
169; advocacy of, by radicals, 
chapters IV., V., passim; by 
conservatives, 260, 261; suppres- 
sion of opinion by, 196, 197, 219, 
260, 264. See " Force and Vio- 
lence"; Solicitation; Riots. 

Virginia, demands federal free 
speech clause, 4; constitution, 
free speech clause, 4; religious 
toleration statute, 17, 18, 31, 66, 



67, 170, 217; Resolutions, 20 n., 
21171., 240 n. 
Voters' Leagues, restrictions on, 
11 n. 

Wade, Judge, 13 »., 62, 63, 64, 

83. 

AV^AiTE, Chief Justice, 325 n. 

Waldman, Louis, N. Y. Socialist 
assemblyman, 333, 356. 

Waldron, C. H., prosecution, 61, 
62. 

Wallace, D. H., prosecution, 13 n., 
62. 

Wallas, Graham, 271 n., 294 n. 

War, extended scope to-day, 6, 7; 
criticism of flogging in army, 
27, 28, 68; of general by troops, 
50; trial of civilians by military 
courts, 33 n., 42; censorship on 
military news, 10, 98, 99; Bills 
of Rights in, 32-34; importance 
of the truth in, 36, 37, 46, 63-66, 
114; psychological eflFects, 225; 
mob violence, 44-46; causes of 
war not subject to judicial 
proof, 104-106; state war cases, 
110 n.; efi^ect on legislative ex- 
clusion, 328-332; on schools, 
366 f.; technical war, 113-119; 
future wars and free speech, 46, 
64, 113 ;f.; federal war powers, 
88, 200. See Speech, freedom 
OF, Concrete applications; Con- 
scription; Espionage Act; 
Army; Navy; Sedition statutes 
OF states; Assembly; names of 
various wars. 

War Department, Report of Ac- 
tivities in Field of Industrial 
Relations, cited, 153 n. 

War of 1812, opposition to, 64, 
330 n. 

War College Publications, cited, 
98, 99. 

War-time Prosecutions and Mob 
Violence, cited, 45 n., 57 n., 74 n., 
102 n., 110 n., 302 n. 

Ward, Judge, 54 n. 

Warrants, general, 296, 297, 29^ 
311. See Arrests; Searches ani 
Seizures ; Deportations. 

Warren, Charles, on treason, 
325 w., 326 n., 327 n. 

Washington, prosecution for libel 



GENERAL INDEX 



431 



on the dead, 172; red flag law, 
181 n.; anarchy act, 188. 

Washington, George, 147; libel on, 
172. 

Watkins, Gordon S., 256. 

Webster, Daniel, 330. 

Weinberger, Harry, 126, 132, 
133 n., 146. 

West Virginia, red flag law, 181; 
sedition law, 190; moving picture 
law, 203 n. 

Westenhaver, Judge, 91. 

Western Federation op Miners, 
267. 

Western Union Telegraph Co., 
109 n. 

Wharton, Francis, quoted, 52, 73. 

White, E. D., Chief Justice, 12, 
148 n. 

White slave traffic, discussion 
punished, 171. 

Whitney, Anita, 190 n. 

W^ickersham, G. W., 133. 

WiGMORE, J. H., Evidence, 85 n.; 
on Abrams case, 130 n., 141 n. 

Wilcox, E. H., Russia's Ruin, 132. 

Wilkes, John, 23, 295; searches 
and seizures, 295-298, 301; ex- 
clusion from House of Com- 
mons, 250, 295, 296, 311-315, 321, 
328, 329, 338, 343, 349, 355, 356. 

WiLLES, Justice, 9 n. 

Williams, A. R., called in Abrams 
case, 133. 

Williams, Roger, 176, 227, 276, 
277, 286, 321, 372. 

WiLLouGHBY, W. W., 230 m., 233 n. 

Willy and his Papa, cartoons, 52. 

Wilson, William B., Secretary of 
Labor, 243, 247, 248, 250, 252; 
decisions on Communist Labor 
Party and Communist Party, 
256-262, 268; on I. W. W., 272, 
273; Martens case, 287, 288; on 
deportation policy, 290, 291. 

Wilson, Woodrow, President, on 
Sedition Act of 1798, 25; ig- 



norance of secret treaties, 87 n.; 
opposes court martial for paci- 
fists, 62; speeches as evidence in 
Espionage Act cases, 67, 103- 
106; exercise of pardoning 
power, 60, 61, 62 m., 73, 87 it., 
117; war aims hindered by pol- 
icy of suppression, 113, 119; at- 
tacked in Abrams case, 120-122, 
138; Russian policy, 131, 132, 
151; message on Federal Sedi- 
tion Bill, 211-213, 220; threats 
to kill, 215; responsibility for 
deportations, 249; on economic 
nature of the War, 321; free 
speech record, 336; miscellane- 
ous, 60, 225, 315, 363. 

Witches, Salem, 356, 351. 

WoLVERTON, Judge, 83. 

Women, discouragement of, in 
war, criminal, 57, 58, 103; na- 
tionalization of, 154. 

Wood, Baron, 27, 28. 

Woods, Arthur, 177, 178 and n. 

Words, and acts, relation to free- 
dom of speech, 49-51, 164-180; 
criminal law of language, 169- 
173. 

Works, John D., on federal judges, 
84. 

" Work or fight " statute, con- 
stitutional, 7. 

WuRSTERBARTH, denaturalized, 109, 
HOn. 

WuRTs, John, on federal juries, 
80 n. 

Young Men's Christian Associa- 
tion, criticism of, criminal, 57, 
70; refusal of contributions, 
punished, 109, 110. 

Youth, social interest in training 
of, limits freedom of speech, 34, 
170, 179, 180, 368, 374 f. 

Zengeb, Peter, trial, 28 and n. 



